Plaintiff v Defendant

1 The plaintiff was born on 12 January 1981 and is presently 41 years of age. He completed VCE and later undertook tertiary studies in information management and training and assessment.

2 In 2006, the plaintiff commenced employment with the defendant as an 'adaptive technology consultant'. The defendant was then based in premises in Prahran, but later moved to Kensington.

3 In broad terms, the plaintiff's work involved setting up or assisting in respect of software and hardware systems for the vision impaired. He was required to visit homes and workplaces throughout the metropolitan area of Melbourne and regional Victoria, as well as interstate (with the exception of Western Australia).

4 The plaintiff signed a written contract of employment on 27 September 2006.[1] The plaintiff contended that the contract incorporated aspects of an enterprise agreement and certain policies and procedures of the defendant. The defendant resisted that contention.

5 The presently significant events occurred in March to July 2015. It follows that the plaintiff performed his duties as an adaptive technology consultant for more than eight years prior to that time. Some of the plaintiff's written performance reviews were admitted into evidence.[2] In broad terms, those documents reveal a history of competent and reliable performance.

6 Notwithstanding the above, in about March 2008 the plaintiff was the subject of an investigation relating to his misuse of a company computer. The plaintiff expressed regret at having breached certain policies of the defendant. Serious consideration was given to terminating his employment, however he appears to have been counselled, his capacity to use the company computer for personal purposes removed and to have been issued with a final warning. In a letter in connection with the event, the plaintiff's then team leader said that she was 'confident that we can put these matters behind us with no further breaches of procedure'.[3] There was no evidence that there had been any subsequent such breach of procedure by the plaintiff.

7 Further, in February 2010 the plaintiff was the subject of an allegation of sexual involvement with a client.[4] The allegation was found to be unsubstantiated and the plaintiff received an email from his then manager to that effect.[5]

8 In January 2011, Jan Hauser became the plaintiff's manager. Initially, relations between them seem to have been good.

9 At some point, relations between them soured. The plaintiff gave evidence that Ms Hauser from maybe late 2011 or in 2012 -

became more micromanaging and just more bossy, unnecessarily involved, more demanding, just in general unpleasant to communicate with.[6]

10 For her part, Ms Hauser gave evidence that the plaintiff had responded to her 'aggressively' and that she 'felt very threatened'.[7] She said that in 2014 and 2105 she found managing the plaintiff 'challenging'.[8]

11 In late 2011, the plaintiff lodged a grievance concerning another employee. He claimed 'continuous bullying, intimidation and harassment'.[9] The plaintiff referred to the stress of having dealt with the other employee and to having accessed the employee assistance program.[10] The other employee responded to the plaintiff's complaint and, among other things, said that he was 'extremely sorry' if he had upset him. He said that it had not been his intention to hurt or upset anyone.[11] The employer undertook a review and published a written report in accordance with its grievance procedure.[12] The plaintiff commented upon that report.[13] The incident seems thereafter to have passed.

12 In May 2014, the plaintiff made a complaint to the General Manager, Leigh Garwood,[14] alleging 'micromanagement' and to having been 'singled out' by Ms Hauser.[15] Mr Garwood met separately with each of the plaintiff and Ms Hauser and later addressed the issues raised in an email to the plaintiff, which was then forwarded to Ms Hauser and a member of the defendant's 'People and Culture' department, Suzanne Eagle. By email in response, among other things, the plaintiff stated -

... as I stated to you during our meeting, I am only interested in a good working relationship and if that can be achieved from your meetings with Jan then I am happy to consider this matter resolved.[16]

13 In evidence, the plaintiff said that he had lowered his standards to 'accept that outcome as final and just move on'.[17]

14 On 29 December 2014, the plaintiff attended his general practitioner, who noted, among other things -

Complaining of anxiety, worse in the last 4 months.

He has to move house due to very sensitive to noise.

15 A mental health care plan was completed and the plaintiff was prescribed Lexapro.

16 The plaintiff attended the clinic again on 17 March 2015. Dr Adey recorded that he was 'feeling a lot better' on Lexapro, but also referred him to a psychologist.[19]

17 I should say that it emerged that the plaintiff had a small degree of earlier psychological treatment. At least part of that seems to have been at the instigation of the plaintiff's mother and to have related to gambling. In evidence, the plaintiff acknowledged that treatment, including a session at Gamblers Anonymous, but indicated that he did not regard his gambling as a problem. As he said -

the severity of people in that group was way beyond what I was going through, and I felt inadequate sharing my non-problem with people who were talking about suicide and family break-ups and losing their house and that sort of thing.[20]

18 In the period March to July 2015, the plaintiff had six sessions with Jonathon Walker, clinical psychologist.[21] The plaintiff was cross examined extensively concerning those attendances. On 7 July 2015, Mr Walker reported that he had treated the plaintiff for 'anxiety and depression'. He referred to the plaintiff's 'significantly heightened sensitivity to particular sounds' as a factor predisposing him to anxiety as well as 'chronic workplace stress' and 'interpersonal difficulties with particular staff members'.[22]

19 On 23 March 2015, the plaintiff was in Bairnsdale performing his duties and stayed at the 'Bairnsdale International Hotel'.[23] During his stay, the plaintiff dealt with one of the proprietors of the hotel, Madlen Trch. The most significant of those interactions occurred after midnight when the plaintiff could hear a noise outside his room. The events of that evening were a major controversy between the parties. For present purposes, it is sufficient to say that the plaintiff considered Ms Trch's attitude in response to his requests to have been a little unusual, although perhaps nothing major; however, Ms Trch considered the plaintiff to have been aggressive and intimidating.

20 At some point after his attendance in Bairnsdale, the plaintiff went on a family holiday to Vietnam. In the course of that holiday he also had problems with noise near his room.

21 While the plaintiff was away, in early May 2015, two other employees of the defendant - Helen McKinley and Fiona Jackson - stayed at the Bairnsdale International Hotel and became apprised of Ms Trch's account of the earlier events.

22 Ms McKinley and Ms Jackson reported the matter to their manager, Debbie Deshayes.[24] From there, the matter was elevated to Ms Hauser[25] and, the next morning, to Michael Van Dyk, the defendant's human resources manager, as well as Ms Eagle. In that email, Ms Hauser stated -

I am forwarding the emails below to you, as the incident outlined by Deb Deshayes and her staff members constitutes a serious breach of VA's values and staff behaviour.

Unfortunately, whilst this should surprise me, it doesn't. I have had verbal reports to me about Adam's aggressive behaviour in the past, and I have had conversations with him over the years, but he has always managed to make excuses and explain his actions. Most recently, I sent him an email requesting that he stop parking in the visitors car park, and he responded to me very aggressively. However, in this instance, there is no excuse.

Adam is away on annual leave at the moment, but I would like to speak with you as soon as possible about this.[26]

23 After that, on 8 May 2015, Ms Deshayes spoke with Ms Trch, who conveyed her account of events, in response to which Ms Deshayes apologised for 'such a demeaning experience'. Ms Deshayes emailed the substance of that account to Ms Hauser and Ms Eagle.[27]

24 On Sunday, 10 May 2015, Ms Hauser emailed Mr Garwood as follows -

Hi Leigh, I am forwarding a lengthy email trail which originated from a complaint Deb Deshayes received from the owner of the Bairnsdale International after Adam Elisha stayed there during a trip delivering AT servicing. This issue came to me shortly after our managers [sic] meeting last week. I forwarded it to Mike and Suzanne, and then rang Suzanne to discuss. She said she will need to speak to Madlen from the hotel, and Deb rang her to gain permission for Suzanne to call. I have been aware for some time that Adam's behaviour has deteriorated (and I have addressed minor issues with him as they arose), but this is something else entirely. Adam is on annual leave until the 18th May, and Suzanne is happy that she has some time to speak with Madlen and decide what action to take. I feel that this is gross misconduct and should be addressed accordingly. My apologies for sending this to you on a weekend, but I am at the airport on my way to Sydney for the regional managers [sic] induction, and thought I may not get much of an opportunity over the next two days. I will be back in the office on Wednesday morning. I will be on my mobile and could call you to discuss if you would prefer. Thanks, Jan.[28]

25 On Tuesday, 12 May 2015, Ms Eagle interviewed Ms Trch by telephone and noted her account of events.[29]

26 On Friday, 15 May 2015, Ms Deshayes and Ms Hauser wrote to Ms Trch on behalf of the defendant as follows -

Thank you for talking with Suzanne Eagle and myself about the behaviour towards yourself from one of Vision Australia's employees. From your description it sounds like the interaction made you feel very uncomfortable. This is not the type of behaviour that we condone from our employees, and we would like to assure you that the matter is being addressed. Please accept our sincere apologies. We would also like to confirm that the employee in question will not stay at Bairnsdale International through Vision Australia's endorsement in the future.

Your feedback is very valuable, and we thank you for bringing this situation to our attention.

We look forward to continuing to foster a professional and respectful relationship with you and your team at Bairnsdale International.[30]

27 There are, of course, aspects of that letter which would suggest that the relationship between the defendant and 'Bairnsdale International' would continue absent any prospect that the plaintiff would stay there with 'Vision Australia's endorsement'.

28 Upon his return from annual leave, the plaintiff received a letter from Ms Hauser, on behalf of the defendant, dated 18 May 2015.[31] In the course of the trial the letter was referred to as the 'stand down letter'.

29 The stand down letter required the plaintiff to attend a meeting in response to 'a complaint ... alleging your serious misconduct' and referred to various of the defendant's policies which, it was alleged, the plaintiff had breached. The breaches were said to have arisen from the events at the Bairnsdale International Hotel on 23 and 24 March 2015. In that regard, the stand down letter stated -

1/ On or around the night of the 23rd March 2015 at around 12.30am whilst staying at the Bairnsdale International hotel on Vision Australia business you behaved in a verbally aggressive and intimidating manner towards a Bairnsdale International staff member. The Bairnsdale International staff member felt humiliated and intimidated by this behaviour.

At around 12.30am you phone the night phone. When called back and asked what assistance you required you answered "I have a noise in my room fix it". When the staff member asked you for a few minutes to get there you answered with words to the effect of "you better be". The staff member arrived to your room (in her pyjamas) and you pointed to the corner of the room and stated that there was a "clicking noise" and indicated it was from outside. When the staff member stated that she couldn't hear anything and that there wasn't maintenance staff on site to check outside you responded in aggressive and loud tones with words to the effect of "You're the Manager you have to fix it, are you not able to do your job, are you not able to do any job, are you incapable of doing anything". This verbal attack went on for several minutes. During this time the staff member was in the corner of the room and you were in front of the door. She felt intimidated and humiliated by this behaviour and just "wanted to get out of the room". To resolve the issue the staff member moved you to another room around 1am. You said "goodnight" but not thank you.

2/ On or around the morning of the 24th March 2015 whilst checking out of the Bairnsdale International you threw the room keys on the Reception desk in a rude and dismissive manner and left without saying anything. The Bairnsdale International staff member (the same one from the previous incident) felt humiliated by this behaviour.

As a result of this behaviour the Bairnsdale International Hotel has requested that you not stay there again.

At this meeting you will be asked to respond to these allegations. It is important that this matter be handled confidentially. You are not to speak with any staff member regarding this matter (unless that person will be your support person at the meeting) and in particular, you are not to approach in any way whatsoever (in person, by letter, e-mail, telephone etc) any person whom you believe may also be involved in this matter. This instruction is to ensure procedural fairness applies to the proceedings and to all involved in the matter. Please note that if you fail to adhere to this instruction, you will be subject to summary dismissal.

Due to the serious nature of the complaint the decision has been made to stand you down from your duties at Vision Australia (on full pay) until this matter is concluded.

Please note that this meeting is being conducted in accordance with the Due Process Clause (47.5) of the Vision Australia Unified Enterprise Agreement 2013 (refer Appendix 1). Please note that disciplinary action up to and including summary dismissal may be an outcome of this meeting.[32]

30 The stand down letter also attached a sequence of appendices, namely -

(a) clause 47.5 of the Vision Australia Unified Enterprise Agreement 2013 ('the Vision EA');

(b) the defendant's 'disciplinary procedure' dated April 2015;

(c) the defendant's 'positive workplace behaviour policy (eliminating harassment, discrimination, workplace bullying, victimisation, and occupational violence)' dated June 2008;

(d) the defendant's 'code of professional conduct policy' dated June 2012;

(e) a letter from the defendant to the plaintiff dated 17 November 2014 concerning performance planning and appraisal; and

(f) an undated document entitled 'Living the Values' which stated the 'Vision Australia Values'.

31 I note that the stand down letter did not refer to any of the plaintiff's 'deteriorated behaviour' or any of the other 'aggressive' behaviour mentioned in the emails of Ms Hauser to which I have earlier referred.

32 The plaintiff arranged to be supported at the appointed meeting by David Nunns, a branch organiser with the Australian Services Union ('ASU'). The plaintiff also prepared a written response to the allegations appearing in the stand down letter. Among other things, the written response stated -

As a general response to this letter, I vigorously deny any such misconduct. I never behaved in any verbally aggressive nor intimidating manner. I never raised by voice; I never used any foul language and never used any profanities.[33]

33 The meeting took place on 26 May 2015. There was an issue concerning whether Mr Nunns was entitled to speak on behalf of the plaintiff; however, he was ultimately permitted to speak. That said, much of the speaking seems to have been done by the plaintiff, and in that connection he read out his written response.

34 Ms Eagle and Ms Hauser were present at the meeting on behalf of the defendant. Their typed file note records that at the close of the meeting Ms Eagle said that 'she would get back to them [the plaintiff and Mr Nunns] after speaking with the GM Victorian client services [John Gow-Hills]'.[34]

35 After the meeting, Mr Nunns sent two letters to the defendant -

(a) a letter to Ms Eagle, dated 28 May 2015, concerning the meaning of 'serious misconduct';[35] and

(b) a letter to Mr Van Dyk, dated 29 May 2015, concerning representation at the meeting.[36]

36 At trial, the plaintiff, Mr Nunns, Ms Hauser and Ms Eagle each gave evidence concerning events at and subsequent to the meeting on 26 May 2015.

37 In respect of the subsequent events, Mr Van Dyk and Mr Gow-Hills also gave evidence.

38 In particular, Ms Hauser, Ms Eagle, Mr Van Dyk and Mr Gow-Hills gave evidence of a meeting, likely held on 27 May 2015, at which, in general terms, it was seemingly recommended by Ms Eagle, and accepted, that Ms Trch's account of events should be accepted. It was determined, probably by Mr Gow-Hills, that the plaintiff's employment should be terminated. I will come to the details of the evidence concerning that meeting in due course.

39 By letter from Ms Eagle to the plaintiff dated 29 May 2015, the plaintiff's employment with the defendant was terminated. During the trial, that was referred to as 'the termination letter'. Among other things, the termination letter stated -

Having reviewed the information available Vision Australia considers that on the balance of probability you did behave in the manner described by the complainant. The complainant reported this behaviour caused her to feel intimidated and humiliated. Vision Australia considers this behaviour to be serious misconduct as it;

• Damages Vision Australia's reputation within the Bairnsdale community

• Caused a risk to the health and safety of a person

• Is a failure to uphold Vision Australia's values

• Is a failure to follow a lawful and reasonable direction

• Has resulted in our loss of trust and confidence in your ability to undertake the role of Adaptive Technology Consultant

Therefore it has been decided to terminate your employment effective 29 May 2015. In accordance with Clause 47.2.5 of the Vision Australia Unified Enterprise Agreement 2013 payment in lieu of notice will not apply in the case of serious misconduct.[37]

40 It will be noted that the termination letter identified the decision to terminate the plaintiff's employment as having been made 'in accordance with Clause 47.2.5' of the Vision EA.

41 The general effect of the plaintiff's evidence, and that of his treating medical practitioners, was that he has been very badly psychologically affected by the termination of his employment. He has had a sequence of treaters, most or all of whom either diagnosed or did not doubt a diagnosis of major depressive disorder.[38] I should say that the defendant took issue with various elements of that evidence.

42 On about 19 June 2015, the plaintiff commenced unfair dismissal proceedings against the defendant in the Fair Work Commission.[39] That step was taken as a consequence of advice given to the plaintiff by Mr Nunns.

43 The defendant prepared a written response to that claim.[40] However, the proceeding was settled shortly thereafter upon the defendant agreeing to make a net payment to the plaintiff of $27,248.68. The Deed of Settlement is dated 9 July 2015.[41] At trial it seemed to be accepted that the payment represented 26 weeks of pay, being the plaintiff's maximum entitlement in respect of such a proceeding.[42]

44 There was also evidence of a proceeding in the Magistrates' Court brought by the plaintiff in respect of statutory benefits. That proceeding seems to have been in court in February 2017, in the course of which at least Ms Hauser and Mr Gow-Hills gave evidence.[43]

45 There have been at least two occasions upon which a medical panel has determined medical questions in respect of the plaintiff.[44]

46 The plaintiff commenced the present proceeding by writ dated 27 August 2020.

47 The parties were each represented at trial by counsel. The plaintiff was represented by Mr Ingram KC with Mr Makowski. Prior to the commencement of evidence, the defendant was represented by Ms Annesley KC with Mr Worth. From that point the proceeding was adjourned for a period. When the trial recommenced, the defendant was represented by Ms Myers KC with Mr Worth. In the course of the resumed trial, an issue arose concerning the defendant's discovery and legal professional privilege. Ms Magee KC appeared together with Ms Myers KC and Mr Worth in connection with that discrete issue.

48 The substance of the plaintiff's case was in 'breach of contract and in tort principally arising from the termination of his employment ... effective 29 May 2015'. He submitted that he was entitled to succeed in both claims and, consequently, to 'substantial damages'.[45]

49 In that connection, by amended statement of claim dated 8 June 2022, the plaintiff alleged that his contract of employment incorporated -

(a) a 'disciplinary policy' and 'disciplinary procedure' each dated July 2008;[46]

(b) further or alternatively, the 'disciplinary procedure' dated April 2015;[47] and

(c) further, certain clauses of the Vision EA.[48]

50 I have already noted that the stand down letter attached copies of the 'disciplinary procedure' of April 2015, and clause 47.5 of the Vision EA entitled 'due process'. Clause 47.5 included the following sub-clauses -

47.5.2 Due process will commence with the employer advising the employee of:

a) The employer's concerns with the employee's conduct or performance;

b) The time, date and place of the first due process meeting;

1. The employee's right to be accompanied by a nominee of the employee's choice at all due process meetings;

d) The employee's right to terminate the employment should due process not resolve the employer's concerns.

47.5.3 Due process meetings will:

a) Include discussion of the employer's concerns with the employee's conduct or performance;

b) Give the employee an opportunity to respond to the employer's concerns;

c) Include discussions of any counselling or assistance, where appropriate, available to the employee;

d) Include documentation, where appropriate;

e) Set periods of review, as appropriate.

47.5.4 If, following due process, the employee's decision is to terminate the employment of the employee, then the employer must give notice in accordance with subclause 47.2.1.

51 The plaintiff also alleged that his contract of employment contained implied terms to the effect that the defendant would provide the plaintiff with 'a safe system of work, safe equipment with which to work, a safe place at work and appropriate supervision'.

52 In respect of the claim in tort, the plaintiff alleged that -

(a) it was reasonably foreseeable to the defendant that a failure to take reasonable care might expose him to a risk of psychiatric injury; and

(b) the defendant owed him a non-delegable duty to take reasonable care for his safety while performing his work.

53 Finally, the plaintiff's pleading referred to regulation 2.1.2 of the Occupational Health and Safety Regulations 2007 (Vic).

54 By reason of the alleged breaches of the contract of employment and duty of care owed by the defendant, the plaintiff claimed to have suffered injury, loss and damage, principally psychiatric injury including major depressive disorder.[50]

55 By its amended defence dated 15 June 2022, the defendant denied all relevant aspects of the plaintiff's claims.

56 As matters developed during the course of the hearing -

(a) the only causally significant events occurred in the sequence of events leading up to the termination of the plaintiff's employment in late May 2015;

(b) in respect of the incorporation of terms into the plaintiff's contract of employment, the focus fell mostly upon clause 47.5 of the Vision EA and the disciplinary policy of April 2015;

(c) the plaintiff otherwise contended that the defendant owed and breached a duty of care to him in respect of the conduct that led to his termination; and

(d) ultimately, little attention was given to the contention concerning implied terms and none given to the regulations.

57 In broad terms, it was submitted on behalf of the plaintiff that his evidence should be accepted and that significant parts of the evidence led on behalf of the defendant should not be accepted. From that point, it was essentially said that the defendant had breached one or more of the above obligations in respect of which an entitlement to damages should flow.

58 For its part, the defendant took issue with every substantive element of the plaintiff's case and contended, among other things, that -

(a) the plaintiff was an unreliable witness;[51]

(b) by contrast, various lay witnesses called by the defendant were 'witnesses of truth' and should be found to have given evidence 'in an honest, earnest, and candid manner';[52]

(c) further, the defendant had been justified in terminating the plaintiff's employment for 'serious misconduct';

(d) the plaintiff's contract of employment did not incorporate the Vision EA, particularly clause 47.5, or the policies and procedures to which I have referred;

(e) further, the Court has no jurisdiction to hear a claim for compensation based in breach of the Vision EA;

(f) even if the plaintiff could establish a claim in contract, no damages may be recovered, alternatively the damages claimed are too remote;

(g) it was not reasonably foreseeable that the plaintiff could suffer psychiatric injury;

(h) further, the defendant was under no duty of care in respect of the manner in which the plaintiff's employment was terminated; and

(i) in any event, the plaintiff is estopped by deed.

59 It will be evident that while several relatively confined legal points might be said to have arisen, the case was conducted by both sides in a manner that extended well beyond them. In that connection -

(a) there was considerable focus upon the credibility and reliability of several witnesses;

(b) it was broadly contended on behalf of the plaintiff that he had not been afforded due process and had been treated very unfairly; and

(c) for its part, the defendant stood by the termination of the plaintiff's employment, and the manner in which it had occurred, and contended that it had been justified in doing so.

60 In that sense, the contest often tended to engage at a more abstract level and in terms pitched towards the overall fairness and correctness (or otherwise) of the conduct of many of those involved.

C The witnesses and other aspects of the evidence

61 Somewhat remarkably, at least in modern personal injuries litigation, the plaintiff called eleven witnesses to give oral evidence and so did the defendant.

(a) the plaintiff;

(b) Marilyn Elisha, the plaintiff's mother;

(c) Dr Michael Greenbaum, treating psychiatrist;

(d) Karen Zayotz, the plaintiff's sister;

(e) David Nunns, branch organiser with the ASU;

(f) Dr Nick Yang, treating general practitioner;

(g) Paul Vanderputt, treating clinical psychologist;

(h) Dr Nick Paoletti, medico-legal psychologist;

(i) Dr Justin Lewis, treating psychiatrist;

(j) Robert Ellery, treating clinical psychologist; and

(k) Gary Allen, forensic accountant.

63 The plaintiff was subjected to a lengthy cross examination. Much of that was directed to a root and branch style destruction of his credibility as a witness.[53] By that measure, it was essentially unsuccessful.

64 The plaintiff presented as gravely psychiatrically affected by the circumstances leading to the termination of his employment. His voice was flat and he regularly looked at the floor. Eye contact was irregular. The cross examination took little or no account of that presentation and proceeded on the evidently assumed basis that the plaintiff was in a position to give evidence as if he were perfectly psychiatrically fit and well.

65 Perplexingly, that occurred despite the psychiatrists later called by the defendant to give evidence each accepting that the plaintiff had been psychiatrically affected by the events in question.[54] Indeed, in evidence, Associate Professor Doherty freely acknowledged that the plaintiff was severely psychiatrically impaired and not in any way maintaining his illness.[55]

66 Further, it also later emerged that funding of a course of electro-convulsive therapy proposed to be undertaken by the plaintiff on the advice of his present treating psychiatrist, Dr Lewis, had been approved by the WorkCover agent.[56]

67 In any event, the tone of the cross-examination was to the effect that the plaintiff was to be viewed as angry, conniving and determined to cover up that which did not suit his overall narrative. That posture did not fit with either the plaintiff's presentation in the witness box or the fact that he regularly said in evidence that he could not really remember particular incidents about which he was being asked; often enough in circumstances where that was not to his advantage, including in re-examination. To me, that tended to confirm his essential honesty. By my assessment the plaintiff was doing his level best to give honest evidence, and in often extremely difficult circumstances.

68 Notwithstanding all of the above, the plaintiff's presentation did affect his evidence. The plaintiff acknowledged that he could be direct ('if I see something, I say something'[57]) and very particular and pedantic.[58] Such a person can feel slighted by the perceived actions or inactions of others, which, in turn, can affect their perception of both the events concerned and the associated behaviour and motivations of others.

69 In that context, as the plaintiff said more than once in the course of evidence, he was being asked about events that occurred many years ago and his memory has since been affected. He also carries quite evident distress concerning the events involved.

70 In addition, the plaintiff was suffering psychologically at the time of those events. I do not mean to suggest that his state of mind at that time could have been anything like how it seemed to be when giving evidence in the present case; however at that time he had a sensitivity to noise, he had recently attended his general practitioner with symptoms of anxiety and depression and was imminently to attend psychotherapy with Mr Walker.

71 Circumstances of the kind to which I have referred can quite naturally affect the accuracy of perception and memory. It follows that while I have tended to accept many of the generalities in the plaintiff's evidence, it has been necessary to take care when approaching details that are in dispute.

72 No submissions were directed to the credit or reliability of the evidence of the plaintiff's mother, sister or Mr Nunns. They were each plainly honest witnesses.

73 The defendant submitted that 'appropriate inferences' ought be drawn from the plaintiff's failure to call his friend, Anastasia, and also Dr Adey, an early treating general practitioner.[59] The precise inference or inferences were not identified.

74 In respect of both, a significant part of the defendant's theory appears to have been that the plaintiff has been obscuring the true state of his psychiatric health. It will be evident that I do not accept that theory.

75 In any event, the defendant introduced into evidence the clinical notes of the McKinnon Hill Medical Centre, including several consultations with Dr Adey.[60] In the circumstances, I decline to draw any inferences in respect of the failure of the plaintiff to call Anastasia or Dr Adey.

76 The defendant was also critical of the evidence of Dr Lewis and Mr Vanderputt. Both are very recent treaters and each presented as valiantly attempting to come to grips with a difficult psychiatric presentation. I reject the submission that their evidence was 'unsatisfactory'.[61]

(a) Ms Hauser, the plaintiff's direct supervisor;

(b) Corey Plover, forensic accountant;

(c) Mr Van Dyk, the defendant's human resources manager;

(d) Ms Trch;

(e) Dr Timothy Entwisle, medico-legal psychiatrist;

(f) Ms Deshayes, the defendant's regional manager for eastern Victoria;

(g) Ms Eagle, a member of the defendant's 'People and Culture' department;

(h) Ms McKinley, an orthoptist employed by the defendant;

(i) Mr Gow-Hills, the general manager of the defendant's 'People and Culture' department;

(j) Dr Peter Doherty, medico-legal psychiatrist; and

(k) Ms Jackson, an occupational therapist employed by the defendant.

78 I have earlier noted the defendant's submission that Ms Hauser, Ms Deshayes, Ms McKinley, Ms Jackson, Ms Eagle, Mr Van Dyk and Mr Gow-Hills should be accepted as witnesses of truth who gave their evidence in an 'honest, earnest and candid manner'.

79 I accept that as an accurate description of the manner in which Ms Deshayes, Ms McKinley and Ms Jackson gave their evidence. However, the position in respect of the evidence of Ms Hauser, Ms Eagle, Mr Van Dyk and Mr Gow-Hills is considerably more complicated.

80 In my view, Ms Hauser gave evidence in a rather off-hand manner, and her tone in respect of the plaintiff was strikingly callous. Much of her evidence betrayed an indifference to the significance of what she had been involved in and the impact that it might have had upon the plaintiff. Contrary to the submission advanced on behalf of the defendant, I consider her to have been an unimpressive witness and that her evidence must be treated with considerable caution.

81 For her part, Ms Eagle had little apparent memory of events, and the evidence of Mr Van Dyk was similar. Indeed, the evidence of both presented as essentially reconstructed. There were also one or two points at which Mr Van Dyk displayed a reticence to answer when he perceived that the question might produce an answer unhelpful to the defendant.

82 Mr Gow-Hills also had an evidently incomplete memory of the events and displayed a similar reticence, but more regularly than that displayed by Mr Van Dyk. That reticence was combined with a tendency to engage in lengthy processes of self-justification.

83 In that connection, Mr Gow-Hills had a tendency to seek to present himself more as a commentator upon what he considered to have been likely to have been his role and thought processes in connection with the events rather than what his actual role and thoughts were. In so doing, Mr Gow-Hills sought to portray his thoughts and actions at the time in the best possible light for himself, albeit that some of his explanations made little sense when considered in any clear eyed way (and therefore cannot be accepted).

84 At its core, Mr Gow-Hills presented as apprehensive that he might be considered not to have acted fairly or correctly - an apprehension that was not wholly misplaced.

85 For these various reasons I have found it necessary to approach the evidence of Ms Hauser, Ms Eagle, Mr Van Dyk and Mr Gow-Hills with very great caution.

86 The defendant made no specific submission concerning the manner in which Ms Trch gave her evidence - it simply submitted that her evidence should be preferred over that of the plaintiff.[62] By contrast, the plaintiff submitted that Ms Trch presented as 'deeply troubled', 'highly stressed' and that her evidence was unreliable.[63]

87 Ms Trch presented as a nervous witness. However, at times her manner was quite direct and even a little brusque. That said, she was regularly distressed and presented as very troubled. A significant part of that seemed to be connected with the subject events, in respect of which Ms Trch said -

I believed in myself that I would be mentally able to deal with it, I'm a grown up woman, how can I not deal with it, I'm a professional hotel owner, how can I not deal with it? I did not expect it to affect me, even now, like it did. I thought I would be strong enough to do it.[64]

88 I considered that part of Ms Trch's evidence to be telling: she remains quite bewildered about her reaction to the events concerned.

89 It is appropriate to acknowledge Ms Trch's distress; however, there was a sense that there was something more to Ms Trch, and her evidence, than met the eye (or ear).[65]

90 As I discuss later on, I consider Ms Trch's evidence to have been affected by a considerable degree of unconscious exaggeration. In my view, it is an exaggeration borne of seeking to align the details of the events involving the plaintiff with Ms Trch's significant degree of distress concerning them.

91 The consequence of the above is that it is necessary to treat Ms Trch's evidence - including the documentary evidence originating in Ms Trch's accounts of the relevant events - with considerable caution. In particular, I am convinced that I cannot rely safely upon any disputed details of Ms Trch's oral account of those events without reliable corroboration.

92 In addition to the above, each party tendered a considerable volume of documentary exhibits (particularly the plaintiff). I have considered that documentary material, including the medical opinions and other such material beyond the medical evidence discussed further below.

D Events at the 'Bairnsdale International Hotel' on 23 and 24 March 2015

93 As I have indicated, both parties gave considerable focus to what might be found to have occurred at the Bairnsdale International Hotel on 23 and 24 March 2015.

94 There were essentially four phases in the sequence of relevant events -

(a) check-in on the afternoon or evening of 23 March 2015;

(b) the telephone call shortly after midnight on 24 March 2015;

(c) the attendance by Ms Trch at the plaintiff's room shortly thereafter; and

(d) the return of the room key at check-out later on 24 March 2015.

95 It was common ground that each of those phases occurred. For that matter, many of the details involved came to be essentially common ground. Some details, however, were not.

96 The major difference between the plaintiff's and Ms Trch's accounts was in the tone attributed to the events that they respectively described and, consequently, their respective feelings concerning them. In that regard -

(a) albeit that at one point the plaintiff said that the events concerned were 'very uneventful',[66] it was also evident that he had thought that Ms Trch had been 'abrupt' and perhaps 'passive aggressive' when dealing with him - he said that 'the tone, made me feel like I was disturbing her';[67]

(b) on the other hand, Ms Trch said that the plaintiff had been 'aggressive' and was 'bullying' her - indeed, she said that she had 'very, very rarely been so afraid in my life'.[68]

97 In substance, the plaintiff considered the attitude and actions of Ms Trch to have been reluctant and unhelpful, but not openly aggressive; however, Ms Trch considered the plaintiff to have been aggressive, threatening and frightening.

98 In respect of events at check-in, the plaintiff gave evidence that -

I checked in, I asked the female receptionist if I could have a room away from the lift so I could not be disturbed. She said, no, there's no [other] rooms available.[69]

99 For her part, Ms Trch gave evidence that she was working alone on reception as her husband was attending a medical emergency in Germany and the plaintiff had checked in 'quite late'. She said -

Mr Elisha checked in and realised that he only had a queen room instead of a king, he rolled his eyes and he said, 'oh, why don't I get a king room', and I explained to him that we have a fully booked house ...

... he kind of started complaining about it and made noises like 'urgh, really, really, urgh, don't you have anything better', so I - we always try to make our guests happy, so I moved a few rooms and people around and managed to give him a room in the back middle of the building, which is room 224.[70]

100 Ms Trch later said that check-in was 'the first time' that the plaintiff had behaved 'quite rudely towards me, and disrespectful'.[71]

101 In cross-examination, the plaintiff conceded that he may have rolled his eyes during check-in.[72] He also acknowledged that at that time he had a sensitivity to noise.

102 As I have noted, the plaintiff was, at that time, already taking Lexapro for anxiety and depression and was just about to attend his first consultation with Mr Walker. Mr Walker's intake notes, presumably completed in connection with the first consultation with the plaintiff on 26 March 2015, recorded, among other things, 'high intolerance to any noise that disturbs me in my home'.[73]

(a) I accept that, in substance, the plaintiff requested a quiet room;

(b) I also accept that Ms Trch initially indicated that there was only one available room - which she knew to be a 'queen' room;

(c) I do not accept that the plaintiff, in terms, requested a 'king' room - the evidence suggested that he had only stayed there once or twice before,[74] and Ms Trch is much more likely than the plaintiff to have been alert to names given to different kinds of hotel rooms and the associated differences in quality and price;[75]

(d) that said, I accept that it is quite possible that the plaintiff requested an upgrade in order that he might be able to have a quieter room;

(e) I also accept that the plaintiff made his annoyance evident when he initially could not be given what he considered to be a sufficiently quiet room - which is more likely to have been communicated via body language, such as rolled eyes, and tone of voice, than via the actual words that he used; and

(f) I accept that contrary to her initial indication that no other room was available (which may well have been communicated somewhat abruptly, at least from the plaintiff's perspective), Ms Trch then found another room that the plaintiff accepted.

104 It will be evident that circumstances of that kind are fertile ground for later misapprehension, mistrust and misunderstanding between the participants.

105 It was essentially common ground that the plaintiff called the night phone shortly after midnight. At that point, Ms Trch had been asleep for about two hours and the plaintiff could hear some kind of noise in or outside his room.

at around midnight I was ill, and I remember I just wanted to have a good night's sleep, I called the reception number, and it rung out the first time, and I called the second time, and a female answered the phone quite abruptly and she just said 'hello', but it was quite aggressive, and, um, initially I thought I dialled the wrong number because I was expecting someone to answer the phone, I suppose acknowledging that you'd called reception, um, but I remember I was extremely polite, I said, I introduced myself, I said I'm in - whatever - I can't remember the room number but I'm in this room and there appears to be some sort of noise coming from the corner, and she instantly abruptly said, 'what do you want me to do, get on the roof and fix it', and I thought - I was quite shocked, and said, 'no, I don't want you to get on the roof and fix it, but I don't know who else to call, you're the manager, what would you like me to do, I'm letting you know that there's a problem with the room'. She ended up offering to come to the room and inspect it, and I said yep, that's fine, so I got out of bed, I put my clothes on and I got ready for her, and when she knocked on the door she answered - I answered the door and she was in her pyjamas, and I thought his is bizarre - not lingerie, Peter Alexander yellow sort of - I can't remember what they were, like yellow and black bumble bees or something, I'm not sure what they were, but very obviously it was pyjamas, and I was very shocked because I didn't know whether to let her in. In the end I thought, well, nothing's going to get resolved if you don't, so I let her in, she asked where the noise was and I pointed to the corner of the room and she walked over to the corner of the room. I stood at the door, I didn't follow her, I wasn't anywhere near her. She ended up saying, 'look, I can't hear it', and I thought well it's typical, but I understand, and she offered me the room next door, and I said, yep, that's fine, and then she went down voluntarily, she actually said 'I'm going to go downstairs and get the key and I'll come back', and she did, she went downstairs to get the key, she came back, she helped me move my bags into the new room, um, she left, I went to bed, we said thank you and good night. I noticed - I didn't notice any noise. That was it.[76]

107 The plaintiff said that when checking out of the hotel in the morning, he went past reception - where Ms Trch was on the telephone - and 'put the key on the desk and left'.[77] It was not in issue that the key was a plastic card.

108 The plaintiff denied that he was in any way aggressive in the course of the events to which I have referred.

109 I should add that at some point the plaintiff texted his friend, Anastasia, as follows -

Just had a rude encounter with the hotel manager. I called to tell her there's a banging in the roof like at my place when it's windy and she says - and I quote "what do you expect me to do?"

[I] said "er - Fix it?" She said "how do you want me to fix it". I said I don't really know how to answer that. She ended up[78]

110 The document containing the text also contained a handwritten diagram of the room, seemingly drawn by the plaintiff.

111 Senior counsel for the defendant closely cross-examined the plaintiff concerning a range of matters relating to the relevant events, including the fact that the copy of the text message was partially redacted and appears to end mid-sentence. In that regard, the plaintiff replied, and I accept, that the redacted part is presently irrelevant and the document contains a screen shot obtained by him from Anastasia rather than a copy of the full message. He said that he had looked for the message on his phone, but could not find it.[79]

112 The plaintiff later prepared a written account of the relevant events.[80] That account is three pages long and it includes denials that the plaintiff had been verbally aggressive or intimidating. That said, it also includes the following explanations in respect of the events -

(a) the plaintiff 'was quite unwell' and had been 'looking forward to a good night's sleep';

(b) on the telephone, the plaintiff considered Ms Trch to have responded abrasively - 'what do you want me to do about it?' - to which he responded 'there is a problem with my room fix it';

(c) in turn, Ms Trch is described as having said 'how do you want me to fix it? Do you want me to get on the roof?' to which, among other things, the plaintiff said 'you are the manager and there is a problem with the room';

(d) the plaintiff said that he was 'upset and offended' by Ms Trch's response and considered that she had responded to his 'legitimate request for assistance with aggression and unprofessionalism';

(e) the plaintiff also thought that it was unprofessional for Ms Trch to have attended his room in pyjamas and 'questioned again what I expected her to do' to which, among other things, he said that she was 'the Hotel Manager and it was her responsibility ... to assist where there is a problem with the room'; and

(f) he was apologetic if Ms Trch had mistaken 'my direct response for aggression, however it was ... not intended to be aggressive and I responded to her far more politely than she spoke to me'.

113 It will be evident that the plaintiff's versions of the events include elements of apprehension and taking offence in circumstances where he was feeling ill and must have been concerned about whether he would be able to sleep.

114 I should add that the plaintiff attended a consultation with Mr Walker on 25 May 2015, who noted, relevantly, as follows -

Manager said I threw keys on desk - was rude to her.[81]

115 For completeness, I should add that the defendant relied upon an incident in Ballarat involving a 17 year old client as having been in the nature of 'similar fact evidence that can be taken into account in determining whether the conduct ... [in Bairnsdale] occurred'.[82] That submission was not developed by reference to any provisions of the Evidence Act 2008 (Vic) or any of the many authorities on the topic of tendency and coincidence evidence.

116 In any event, it was not clear exactly when the incident in Ballarat had occurred. The incident also seems to have come to the attention of Ms Eagle via Ms Hauser roughly a month after the employment of the plaintiff was terminated. That seems to have occurred around the time that the defendant was responding to the plaintiff's unfair dismissal application, albeit that the fact of the 'complaint' concerning the incident in Ballarat did not feature in the defendant's written response to that claim.

117 Nonetheless, the results of Ms Eagle's inquiries in respect of the incident in Ballarat were recorded in a file note and none of that seems to have involved enquiring directly of the client concerned.[83]

118 At trial, the client was not called and neither were either of the sources referred to in the file note. For that matter, Ms Eagle gave no evidence concerning her investigation into the Ballarat incident or its quality and significance. Nor did Mr Gow-Hills.

119 The plaintiff explained the incident when he was challenged about it in cross-examination.[84] He said that the person spoken to by Ms Eagle had been interjecting and answering questions on behalf of the client. He said that her perception of his rudeness was 'unfortunately subjective' and denied that he had adopted a rude tone of voice. He did, however, agree that he had asked the client 'are you mute?' and acknowledged that it had been a 'poor choice of words', but explained that he was trying to be jovial and 'lighten the mood, which was ... unfortunately not how it came across'.[85] I accept his evidence concerning the incident.

120 It follows that I do not accept that the evidence concerning that incident comprises 'similar fact evidence' that makes it more likely that the plaintiff behaved in Bairnsdale in the manner contended for by the defendant.

121 For her part, Ms Trch gave evidence that the telephone had rung 'just after midnight'. She said that it 'kept ringing and kept ringing' and she got up but did not make it to the telephone before it stopped. She said that the telephone started ringing again and she answered it. She thereafter gave evidence as follows -

The first thing I heard was 'there's a noise in my room and I need someone to come and fix it now', and so I asked politely, 'who am I speaking to', and he stated his name and room number, and he kept on telling me that 'I need someone here, there is a noise in my room, I can't sleep, it's loud, I can't sleep, I need you to come and fix it now, and I need you to fix it now'. So I explained to him that we do not have a 24-hour maintenance person in the house, and he just said, 'it's your job, you're the manager, aren't you capable of doing your job, are you capable of doing anything, anything at all', and that was when I said to him that I will be there shortly, and he said, 'yep, I expect you to be here in latest five minutes', and then he hung up on me ...[86]

122 Ms Trch confirmed that she attended the plaintiff's room in her pyjamas (with a jumper over the top) and that the plaintiff was waiting for her at the door. She said -

I said good evening, and he didn't answer that, and then I walked into the room and he said, 'it's in the corner, can't you hear it, it's in the corner'. So I walked into his room and I went into the corner between the window and - between the window and the bedside table, and I was listening to what he was referring to and I couldn't hear.[87]

123 Ms Trch said that the plaintiff was standing in front of the bed, between the bed and the television. She said -

I voiced it to him, I said, 'I'm really, really sorry, but I - I can't hear anything, I'm really sorry, but there is no noise, I can't hear anything', and, um, he started walking towards me, and started raising his voice, and telling me how useless I am, and I'm not - I'm not capable of doing anything and I shouldn't be a manager, and I can't hear it - 'can't you hear it, this is ridiculous, and can't you do your job, you're a manager, you're supposed to do something for your guests", and he kept coming - he kept coming towards me, and he - he started waving his arms, and he - I wanted to get out but he blocked my exit, and his eyes were just getting bigger and bigger, and his language became more aggressive, and I couldn't get out, I was afraid, very, very rarely been so afraid in my life, like I was that night.[88]

124 Ms Trch said that she wondered whether the plaintiff was 'going to hit me' or 'come physically at me'. She said that he eventually stopped and when she was able to talk she offered him a different room owing to the late non-arrival of another customer. She went to get the key and by the time she got back the plaintiff had his bag packed. She said that he walked into the replacement room and slammed the door in her face.[89]

125 Ms Trch added that the next morning, when leaving, the plaintiff 'walked into the reception foyer and threw the key'. She said that it landed on the floor 'just before the reception desk'.[90]

126 In cross-examination, among other things, Ms Trch -

(a) said that she 'regretted very deeply' that she had not gone to the police at the time;[91]

(b) suggested that the plaintiff had been 'yelling' at her on the phone, albeit that she later agreed that during the telephone call the plaintiff's tone had been aggressive but his volume had been 'normal';[92]

(c) agreed that she had said that she did not have a maintenance person on site and was not going to get up on the roof at night, then denied that she had said 'what do you want me to do, get on the roof and fix it' and then said that she did say that in the room, just not on the phone;[93]

(d) said that in the room, the plaintiff had been 'shouting and being more aggressive towards me', but then clarified that he had 'raised his voice, but not to a shouting level';[94] and

(e) said that she offered the plaintiff another room -

after he verbally insulted me, and came towards me, and pushed me further in the corner, and I didn't know what else to do.[95]

127 Cross-examination was largely directed to the differences between Ms Trch's account in oral evidence and the written accounts taken much earlier by others.

128 In that connection, I have earlier referred to the fact that two employees of the defendant - Ms McKinley and Ms Jackson - were called to give evidence. Little turned on their evidence; however, the real significance of it was that Ms McKinley and Ms Jackson had stayed at the Bairnsdale International Hotel on 5 May 2015 and been approached by Ms Trch, evidently somewhat reluctantly.

129 Ms McKinley and Ms Jackson later prepared a written account of events that was emailed to their manager, Ms Deshayes, on 7 May 2015. That account stated, relevantly, as follows -

• She explained that he [the plaintiff] had stayed there and that there had [been] some issues with his behaviour when he was denied an upgrade of his room to a king room. He had been upgraded on a previous occasion when all other standard rooms were occupied at the motel.
• She explained [that] he approached later again demanding an upgrade which was denied.
• Madlen then explained that around midnight after she retired for [the] night she was disturbed by a lot [of] noise in the building [and] on investigating she found this to be Adam who once again demanded an upgrade and verbally insulted her saying that she was "hopeless and terrible at everything". At this point in the conversation Fiona arrived and listened to the story unaware that it was about a Vision Australia worker.
• Madlen said that he continued the disturbance and as she was alone and [as] he would not desist in his actions that night, [she] felt she could do nothing else but to upgrade him in the middle of the night, which she did. It might be added that she was in her pyjamas when she had to deal with this.
• She was clearly distressed by the incident and in recounting it to us.

...

• We asked why she didn't complain to the booking agency or Vision Australia but she said she was afraid of ramifications to the business that she and her husband operate.[96]

130 Ms Deshayes was also called. Again, there was little, if any, controversy about her evidence. I considered her to be an impressive witness.

131 Ms Deshayes attended the Bairnsdale International Hotel on about 9 May 2015 and spoke with Ms Trch. She recorded that Ms Trch had felt 'really humiliated on that evening' and would feel uncomfortable having the plaintiff back. That account also stated, relevantly, that -

At about 12.30am he rang me in the middle of the night and said there's a noise in my room and you need to fix it. I was half asleep so I said to him excuse me what would you like me to do? He said you're the manager - you need to fix that.

I'm in room xx and I expect you to be here.

I went into his room and he was standing waiting for me. He said it's in the corner. I said for me I can't hear anything. He said that's your job, you're the manager you have to fix it, are you not able to do your job, are not able to do any job, are you incapable of doing anything! He was speaking in language that was raining down on me. I went down to the office and rebooked him into the king room which was next to his. He said goodnight, but no thank you.

In the morning he walked into the office and threw the key across the counter and just left.[97]

132 Shortly thereafter, the incident was investigated by Ms Eagle. She spoke with Ms Trch by telephone on 12 May 2015 and, relevantly, noted as follows -

When Madlen called him [the plaintiff] back and identified herself and asked how she may assist Adam said "I have a noise in my room, fix it". Madlen described his tone as aggressive but his volume as normal. Madlen asked for a few minutes and she will be there. Adam said "you'd better be". As Madlen remembered Adam wasn't very happy at check in, she hurried to his room, still in her PJs. Adam was waiting in the hall outside the room. Adam indicated that the noise was in the corner, that it was a clicking noise and that it was coming from outside. Madlen listened but "I swear to God, I didn't hear anything". Madlen told Adam that she couldn't hear anything. Adam went on to say things like "you should make sure the room is ready", "are you not able to do your job", "are you not able to do any job". His voice was raised, but he wasn't shouting. Madlen told him she wasn't able to investigate further. That she didn't have a maintenance person on site and that she wasn't going to get up on the roof during the night. Madlen's impression was that Adam was indicating that she was purposely not helping him and that she was a rude and arrogant person. This went on for 5 to 10 minutes. Madlen stated she just wanted to get out of the room. She was in the corner and he was in front of the door way. She felt intimidated. Her husband (Tomas) was away for the night. She had a late cancellation of a King room (#223) so she offered Adam this room. She went down to the office and made the change and helped Adam move into it. All this time Madlen was in her PJs.

Madlen next saw him in the morning when she was on the desk. He didn't say anything to her just throw [sic] his keys on the desk. When Suzanne Eagle questioned the manner in which he threw them, Madlen said "like he didn't give a s###". Whilst recounted [sic] these details to Suzanne, Madlen became teary and said she "felt humiliated".[98]

133 The three written versions are, of course, not perfectly consistent, and it would be unreasonable to expect that they were. That said, the first version - prepared by Ms McKinley and Ms Jackson - seems to contain some significant errors. In cross-examination, Ms Trch agreed that at least one part of that account was not correct, albeit that she then tended to resist the proposition and ended up saying that she was 'not responsible for what they wrote down and what they stated'.[99]

134 It is evident that Ms Trch was woken from sleep by the telephone call, later sought to put the events behind her, has been more distressed by the events than she expected and first raised matters with Ms McKinley and Ms Jackson somewhat reticently and roughly six weeks after the events occurred. Even in that context, however, the account then taken contains at least one significant error. It seems to me to be unlikely that Ms McKinley and Ms Jackson misunderstood what was being said to them.

135 To me, the circumstances to which I have referred suggest that Ms Trch was undertaking a process of reconstruction from the earliest of her accounts. Further, the accounts seem to have become rather more florid over time, particularly the version given orally at trial.

136 In that connection, none of the three written versions of the account contains a significant number of the important elements emphasised by Ms Trch in her oral evidence at trial, particularly that -

(a) the plaintiff was walking or coming towards her when she was in the corner of the room;

(b) the plaintiff was waving his arms;

(c) Ms Trch was forced to retreat into the corner of the room;

(d) the plaintiff's eyes became bigger and bigger;

(e) Ms Trch wondered whether the plaintiff would come at her physically or hit her;

(f) the plaintiff slammed the door of the replacement room; and

(g) the next morning the plaintiff said nothing and threw his key to the reception desk, which landed just before the desk and on the floor.

137 Indeed, in some respects the plaintiff's oral account at trial was inconsistent with elements of the earlier written accounts, particularly in respect of the ringing of the telephone and the later events at check-out.

138 When asked about most or all of the elements to which I have referred, Ms Trch repeatedly maintained that she was sure that she had told Ms McKinley, Ms Jackson, Ms Deshayes and Ms Eagle respectively. She said -

I told them, but I'm not responsible for what they wrote down and what they stated. But I told them.[100]

(b) that she was 'sure' that she had told Ms Deshayes that the plaintiff had walked towards her, waved his arms, blocked her exit, had bigger and bigger eyes, had more aggressive language and that she had been frozen and could not see a way around his waving arms;[101] and

(c) that she did not know why Ms Eagle had written that Ms Trch had missed the plaintiff's call and then called him back.[102]

139 I cannot accept that Ms Trch gave the disputed elements of her oral account to any of Ms McKinley, Ms Jackson, Ms Deshayes or Ms Eagle.

140 As I have indicated, I also consider it to be likely that all of the earlier written accounts of the relevant events are affected by elements of reconstruction. That said, I consider it to be likely that the version given to Ms Deshayes is closest to the truth - as she attended the Hotel to speak with the plaintiff and was impressive in her own evidence. However, that does not mean that I accept every element of that account.

141 I have earlier referred to the impression conveyed by Ms Trch as a witness. In light of that, and the above, I cannot accept that the plaintiff behaved in the objectively threatening and terrifying manner variously sought to be conveyed by Ms Trch.

142 That said, I tend to think that Ms Trch was annoyed by the plaintiff and his requests and later much more frightened looking back on the events than she ever expected to be. I consider that to be more a product of her evident vulnerability and the unusual circumstances of the night rather than anything really frightening or threatening done by the plaintiff.

(a) I have already referred to the impressions likely to have been conveyed at check-in, and the influence that that is likely to have had in respect of the perspectives of the participants later in the evening;

(b) further, the plaintiff and Ms Trch were both at real risk of misapprehending the motives and actions of the other, as they both presented as somewhat vulnerable;

(c) in that regard -

(i) Ms Trch emphasised the fact that her husband was away, she did not have maintenance support in the middle of the night and the hotel was full; and

(ii) the plaintiff was feeling ill, apprehensive about and sensitive to noise, had seen his general practitioner in connection with anxiety and depression for which he was taking Lexapro and he was shortly to see Mr Walker;

(d) in addition, the events occurred late at night after Ms Trch had been asleep for about two hours and was 'half asleep';[103] meanwhile, the plaintiff seems to have been ruminating about whether to call the night phone and presumably lying in bed awake until he could take it no longer;[104] and

(e) in those circumstances, it seems to me to be most unlikely that any of the various versions of events (whether emanating from the plaintiff or Ms Trch) are likely to be wholly accurate - they were all far too apt to be influenced by the circumstances and the tendencies of each of the plaintiff and Ms Trch to apprehension or misapprehension in respect of the other.

144 It follows from the above, that the circumstances of the night are best approached with a degree of sympathy for the position and fears of each of the participants.

145 In that context, it seems to me that the most likely substance of the relevant events is as follows -

(a) the plaintiff called the night phone (either for many rings, more than one ring, or Ms Trch called him back - it does not make much difference which);

(b) in the telephone call, the tone adopted by each person aggravated the other, although that was largely unintentional by each of them - the plaintiff was direct and wanted Ms Trch to 'fix' the problem about which he had been ruminating; Ms Trch probably recalled the plaintiff from check-in and was a little terse and somewhat reticent to investigate (as it was late at night, she was half asleep, on her own and she could not then 'fix' any problem requiring maintenance support);

(c) the plaintiff was very likely aggravated by Ms Trch's evident reticence and became more insistent that she attend his room in the middle of the night;

(d) at that point, each was somewhat offended by the perceived rudeness or unreasonableness of the other;

(e) when Ms Trch arrived at the plaintiff's room, the plaintiff was either inside or outside the door (it does not matter much which);

(f) Ms Trch attended in pyjamas - which likely fuelled the plaintiff's concerns that Ms Trch was not taking his problem seriously, but also likely contributed to her fears and feelings of vulnerability when the plaintiff insisted that she investigate personally;

(g) Ms Trch investigated and could not hear the noise about which the plaintiff was complaining - which probably led to mutual further inflammation: on the part of Ms Trch, that the plaintiff was taxing her concerning something that she could not hear;[105] and on the part of the plaintiff, that Ms Trch was not taking his concern seriously enough;

(h) in that context, I think it is likely that the plaintiff emphasised that Ms Trch was the manager and would have to 'fix' the problem;

(i) I think that it is likely that the plaintiff spoke in tones of annoyance fuelled by a fear that if the problem were not fixed he would not be able to get any sleep and would spend the night awake and unwell;

(j) that said, I do not accept that in either the telephone call or at the room the plaintiff was yelling or shouting at Ms Trch - if he had shouted on the phone it seems to me to be unlikely that Ms Trch would ever have attended the room, and it seems to me to be unlikely that the plaintiff would be shouting in a full hotel in the middle of the night with the door to his room open;

(k) I also do not accept that the plaintiff's words were 'raining down on' Ms Trch - although, I accept that Ms Trch may have perceived that to be the case in light of her vulnerabilities and the fact that her mind was probably racing at the same time as the plaintiff was calling upon her capacity as a hotel manager and seeking to get her to 'fix' a problem that she could not hear and could not then remedy even if she could come to hear it;

(l) in this context, I do not accept that the plaintiff walked towards Ms Trch aggressively, waved his arms, blocked her exit, had bigger and bigger eyes or had more aggressive language;

(m) I accept that in the tension of the moment, Ms Trch suggested the solution of the new room which the plaintiff then embraced;

(n) from that point it seems to me to be likely that any real tension between them dissipated, albeit that each was left with something of an impression of the rudeness of the other;

(o) I accept that Ms Trch obtained the new key, returned to the plaintiff and held the door of the new room open in order for him to move rooms;

(p) I do not accept that the plaintiff slammed the door in Ms Trch's face;

(q) I accept that the plaintiff checked out the next morning by throwing his room key rather casually onto the desk at which Ms Trch was sitting or standing - although I do not accept that there was anything aggressive or threatening in his action; and

(r) I do not accept that the plaintiff threw the room key towards the desk and that it fell onto the floor.

146 I should say that in reaching the above conclusions I am not uninfluenced by the following relevant circumstances -

(a) there was not an evident disproportion in the presences of Ms Trch and the plaintiff. In particular, the plaintiff is not an overly big man and his manner presented as internalised and therefore much more likely to have been, at most, radiating annoyance, rather than giving active physical expression to it;

(b) Ms Trch made no complaint at the time. While she advanced an explanation for not having done so, that struck me as exaggerated; and

(c) two days after the incident, the plaintiff attended Mr Walker. At that consultation, the plaintiff is noted as having referred to his sensitivity to noise, but nothing was noted in respect of his then very recent stay at the Bairnsdale International Hotel. If anything seriously dramatic had occurred there, it was then very recent and likely to have been considered to have arisen from the plaintiff's noise sensitivity and thus likely to have been at least mentioned to Mr Walker who was hearing about the plaintiff's problems for the first time.

147 It follows from the above, in my view, that the events which transpired in Bairnsdale were considerably less objectively dramatic than later suggested (and evidently accepted). There were many contributing factors to the events, and to what occurred subsequently - particularly the vulnerability of both Ms Trch and the plaintiff. However, I cannot accept that in the course of the events in Bairnsdale the plaintiff was anything more than irritated and insistent (and therefore irritating). He was not objectively aggressive, threatening or frightening.

148 I am, of course, conscious that Ms Trch was and has remained upset. For her, the events of the night have become bigger and more frightening. However, it does not follow that the plaintiff's behaviour was of a kind that was inherently apt to lead to that result.

E The termination of the plaintiff's employment

149 The other major part of the factual contest concerned the events relating to the termination of the plaintiff's employment on 29 May 2015.

150 I have earlier referred to the circumstances by which Ms Trch's concerns came to the attention of the plaintiff's direct supervisor, Ms Hauser, and to be investigated by Ms Eagle from the defendant's 'People and Culture' department. In particular -

(a) Ms Hauser's email to Mr Van Dyk, the human resources manager of the defendant, copied to Ms Eagle, dated 8 May 2015,[106] in which, among other things, she said that -

(i) the incident in Bairnsdale amounted to a 'serious breach of VA's values';

(ii) she was, however, not surprised;

(iii) she had received 'verbal reports ... about Adam's behaviour in the past' and that she had 'had conversations with him over the years';

(iv) the plaintiff had, however, 'always managed to make excuses and explain his actions';

(v) she had most recently sent the plaintiff an email about parking in the visitors' carpark to which he was said to have responded 'very aggressively';

(vi) 'in this instance, there is no excuse'; and

(vii) she would like to speak with Mr Van Dyk 'as soon as possible about this'.

(b) Ms Hauser's email to Mr Garwood, the general manager of the defendant, dated 10 May 2015,[107] in which, among other things, she said that -

(i) she had discussed the incident with Ms Eagle after having forwarded the relevant underlying emails to her, as a consequence of which it was anticipated that Ms Eagle would speak with Ms Trch;

(ii) she had been 'aware for some time that Adam's behaviour has deteriorated (and [she had] addressed minor issues with him as they arose), but this is something else entirely';

(iii) she considered 'this' to be 'gross misconduct and should be addressed accordingly'; and

(iv) she was apologetic for emailing on the weekend, but would be 'on [her] mobile and could call [Mr Garwood] to discuss if [he] would prefer';

(c) Ms Eagle's telephone interview with Ms Trch on 12 May 2015;[108] and

(d) Ms Hauser's letter (together with Ms Deshayes) on behalf of the defendant to Ms Trch dated 15 May 2015,[109] in which they -

(i) acknowledged that based on Ms Trch's description 'it sounds like the interaction made [her] feel very uncomfortable';

(ii) stated that 'this is not the type of behaviour that we condone from our employees';

(iii) offered their 'sincere apologies'; and

(iv) confirmed that the plaintiff would not stay at the Bairnsdale International Hotel again with the defendant's 'endorsement'.

151 In that connection, it emerged that after Ms Trch spoke with Ms Eagle on 12 May 2015, Ms Eagle and Ms Deshayes, on behalf of the defendant, organised and paid for her to have a session of telephone counselling.[110]

152 As I have noted, the early suggestions of Ms Hauser - and therefore at least part of the impetus for the process that followed - included the contention that the plaintiff had a history of behaving aggressively and avoiding the consequences of that behaviour by 'making excuses' and otherwise explaining away his actions.

153 In that connection, in cross-examination of the plaintiff, senior counsel for the defendant put the following account from the plaintiff's performance review dated 27 November 2012, apparently written by Ms Hauser -

clients sometimes feel that they are not listened to. Adam and I have discussed this and he is aware that even if he knows what is best for the client, it is still important that the client feels that their opinion is taken into consideration.[111]

154 The plaintiff could not recall that suggestion and had been shocked to read it after his termination.[112]

155 It might be said, of course, that the suggestion was not one of aggression towards either clients or other employees of the defendant, including Ms Hauser. I also note that the same part of the performance review included a statement that the plaintiff 'has been a co-operative and helpful team member'.

156 The only other relevant written performance reviews tendered in evidence contain no suggestion of aggression or excuse making.[113]

157 No written performance reviews dated in 2013, 2014 or 2015 were tendered into evidence. Mr Van Dyk gave evidence that he had searched for relevant documents. He said that it was possible that the plaintiff had been reviewed in 2013 and 2014, but it was also possible that he had not been reviewed. He thought that it was unlikely that the plaintiff had been reviewed in 2015 due to the timing of the plaintiff's termination.[114]

158 For his part, Mr Gow-Hills, the defendant's general manager of 'People and Culture', was not confident that such records existed. He said the position varied over time and that there -

may have been a period of time when we actually discouraged documentation of the conversation because the important thing was the conversation.[115]

159 I regard that answer as an example of the tendency of Mr Gow-Hills to which I earlier referred. Such an answer sounds passable in the moment in which it is said; but a moment's reflection reveals it to be both telling and untenable. That is especially so when -

(a) the evidence that there was ever any suggestion to the plaintiff of aggression or excuse-making in the course of his reviews (or any other setting) is flimsy, at best; and

(b) Mr Gow-Hills' other evidence - to which I will later come - sought to excuse any failure to record such a 'conversation' as not inconsistent with proper processes including the defendant's grievance mechanism procedure.

160 Senior counsel also put to the plaintiff an issue said to have arisen in July 2014 concerning the plaintiff not responding to a client's phone calls.[116] Again, the plaintiff could not recall the incident, and again, it seems not to have constituted an example of aggression or excuse making of any untenable kind.[117]

161 It follows that the substance of the position is that the only available records relating to the plaintiff's performance in the period while he was being supervised by Ms Hauser contain no suggestion that he was aggressive towards her or any other staff member of the defendant (or any client) or that he was engaging in some systematic exercise in untenable excuse making.[118]

162 Notwithstanding the above, senior counsel for the defendant put to the plaintiff that there were 'a number of occasions' where Ms Hauser had felt that he had 'an unacceptable tone or [was] abrupt or rude or aggressive' when dealing with her. The plaintiff said that he had never raised his voice and that people could sometimes 'mistake being direct for being rude'. He did not think that he had been abrupt with her, or rude or aggressive.[119] He said -

I don't remember her really on any single occasion telling me that, um, there were issues with my job, no, or there were issues with my work.[120]

163 The plaintiff also had no recollection of 'an occasion' on which Ms Hauser was said to have 'tried to informally raise an issue with [the plaintiff] about [his] manner and [he] demanded to know who had raised the issue and got very aggressive'. He said that it was 'a very vague example'.[121]

164 The plaintiff did remember an issue relating to him using the visitor's carpark, but explained the circumstances in which that had occurred and essentially rejected any suggestion of rudeness.[122]

165 The plaintiff also responded to questions directed to issues between him and Ms Hauser regarding access to his Outlook calendar, and questions directed to his dealings with a 17 year old client in Ballarat. I have already referred to the latter, and none of that to which I have referred seems to have related directly to any suggestion of aggression towards Ms Hauser or any other staff of the defendant.[123]

166 For her part, Ms Hauser gave evidence that the plaintiff had responded 'very aggressively' about the issue relating to the carpark. She said that he had raised his voice and that she had felt 'very threatened'.[124] She said that he had been 'challenging' to manage in 2014 and 2015 and that -

if Adam didn't like something that I was doing, for instance, the calendar Outlook, requesting his calendar be open, things like that, he became very, um, angry and aggressive, um, he didn't - he certainly wasn't easy to manage.[125]

167 As to Ms Hauser's references to reports of the plaintiff's aggressive behaviour in the email of 8 May 2015 to Mr Van Dyk and Ms Eagle,[126] Ms Hauser said that she was not able to recall, but then referred to employment consultants or clients very often requesting the other worker, Glen, instead of the plaintiff, to conduct work site assessments.[127] As to the plaintiff making excuses, she said -

I don't recall him ever actually acknowledging responsibility for that, even if I brought it up he would say, "no, no, that's not what I meant" or "no, I didn't do that", or "no, no", so there was no acknowledgement from him at all that he'd done anything.[128]

168 In cross-examination concerning her performance reviews of the plaintiff, Ms Hauser said -

I would have brought things up, I definitely would have brought things to his attention about his manner with clients and things like that, but not gross misconduct, because that hadn't happened at that point.[129]

169 Ms Hauser later said that the plaintiff's aggressive behaviour was 'more common than not' and that he 'clearly had a history of being disrespectful and not taking responsibility for his actions'.[130]

170 Notwithstanding the evidence to which I have referred, Mr Van Dyk gave evidence that the only awareness he had of the plaintiff behaving in an aggressive manner was in relation to 'this particular situation', meaning the allegations relating to the incident in Bairnsdale.[131] That said, he freely admitted that 'it's a long time ago' and that his memory of the events was hazy and seemingly a product of having reviewed documents.[132]

171 Similarly, when taken to Ms Hauser's email of 8 May 2015, Ms Eagle did 'not really recall' what she was thinking, at the time, of the seriousness of the allegations against the plaintiff, and confirmed that she did not have much of a recollection of the events outside of the documents.[133] Nonetheless, in cross examination Ms Eagle said that she had put Ms Hauser's email out of her mind when conducting her investigation.[134]

172 By contrast, Mr Gow-Hills gave evidence that 'a factor' in his reasoning as to whether the incident in Bairnsdale had occurred as alleged by Ms Trch was -

a history of, um, reported to me, of Jan Hauser as Mr Elisha's manager finding him very difficult to manage. It was reported to me that she would use words like 'I find him intimidating', um, you know, 'I dread having to talk to him about a complaint we might have received or about his performance, because, um, of the aggression that I'm going to be met with', so - and that description of Ms Hauser's experience of managing Adam had been described to me over some time, not in - not in the moment of these events, but it was something that I had heard previously, um, from the business partner supporting Ms Hauser, which largely would have been Suzanne [Eagle].[135]

173 Mr Gow-Hills could not be sure, but he thought that he had been aware of Ms Hauser's problems with the plaintiff for at least 'many months' and perhaps a '12-month period'.[136]

174 Later, in cross-examination, when asked how it could be that there was no written record of the aggressive behaviour to which he referred, Mr Gow-Hills said 'there's a difference between a formal record and what I'm talking about'.[137] Mr Gow-Hills explained that he was unsurprised that Ms Hauser had not formalised any complaint concerning the alleged behaviour of the plaintiff as 'she wouldn't want to get into a dispute with him'.[138] In that regard, Mr Gow-Hills seems to have thought that it was 'not inconsistent' with the defendant's grievance mechanism procedure for there not to have been any written record of the claimed aggressive behaviour, given that the procedure 'commences with a statement and an encouragement to try to resolve matters of grievance informally and directly'.[139]

175 When senior counsel for the plaintiff accused Mr Gow-Hills of preferring 'behind the doors gossip', Mr Gow-Hills replied -

What you've characterised as gossip, I would describe as conversations between a manager with their People and Culture business partner [Ms Eagle] where she's expressing the difficulties she's encountering seeking to manage Mr Elisha, and taking advice, the intent being to move the working relationship to one that's positive and constructive and where Ms Hauser's concerns are being addressed.[140]

176 Mr Gow-Hills did not explain precisely how it could be that the 'relationship' between Ms Hauser and the plaintiff could be made 'positive and constructive' without Ms Hauser's concerns ever being documented or the subject of any kind of formal process in which the plaintiff would be afforded a right to be heard.

177 In the circumstances to which I have referred, the plaintiff submitted that Ms Hauser was motivated to damage him as a consequence of his earlier complaint against her concerning micromanagement, and that the decision concerning his fate had already been made as early as mid-May 2015. Ms Hauser rejected both suggestions and it is presently unnecessary for me to determine either question.

178 It is presently sufficient to say that I am very doubtful that the plaintiff had any history of aggression or untenable excuse making prior to the events in Bairnsdale in March 2015. The evidence of any such aggression or untenable excuse making is insubstantial and I do not regard the fact that Mr Gow-Hills gave evidence of Ms Hauser having reported such a history to him to stand as any evidence that the aggression or excuse making actually ever occurred.

179 I certainly do not accept that any such suggestion was ever raised with the plaintiff directly. To the extent that anything was ever said, I do not accept that it was ever in a form in which the plaintiff could have understood precisely what was being said and therefore be in a position to respond and modify his behaviour if thought appropriate.

(a) Ms Trch's account of the events in Bairnsdale on 23 and 24 March 2015 was conveyed to Ms McKinley and Ms Jackson in early May 2015, and from there to Ms Deshayes and then to Ms Hauser;

(b) at that point, Ms Hauser sent the emails that conveyed the substance of the allegations made by Ms Trch concerning the events in Bairnsdale to Mr Van Dyk, Ms Eagle and Mr Garwood, but also variously included her suggestions that the plaintiff had a history of being aggressive and engaging in untenable excuse making;[141]

(c) albeit that neither of the emails was sent to Mr Gow-Hills, the defendant's then general manager of People and Culture, Ms Hauser's views concerning the plaintiff had also found their way to him;

(d) until about 18 May 2015, the plaintiff was relevantly on annual leave in Vietnam with other members of his family and not on notice of any of the allegations being advanced against him; and

(e) Mr Gow-Hills came to be the ultimate decision maker in respect of the termination of the plaintiff's employment.[142]

181 In that context, the prejudicial and pernicious effect of Ms Hauser's characterisation of the plaintiff as apt to be aggressive and to engage in untenable excuse making - planted, as it was, in the minds of the decision makers in the plaintiff's absence and without ever giving him an opportunity to respond to it - is plain, and came to be seen repeatedly in the evidence called on behalf of the defendant.

182 That is, the persons evaluating the allegations made against the plaintiff and therefore his fate, most of whom had rarely if ever dealt with him (except for Ms Hauser), had been told that he was aggressive and apt to engage in untenable excuse making. Unsurprisingly, those persons subsequently came to -

(a) prefer the allegations made by Ms Trch - which, of course, were allegations of aggression; and

(b) reject the plaintiff's explanations - which they almost uniformly dismissed as, in effect, mere denials and, indeed, Mr Gow-Hills went so far as to describe the plaintiff as having been 'untruthful to avoid accountability for his actions'.[143]

183 In that connection, on the plaintiff's first day back at work on 19 May 2015, Ms Hauser emailed the plaintiff and required him to attend her office. The plaintiff said that the email 'wasn't even in a nice tone' and that he 'felt faint'. When he attended, Ms Hauser presented him with the stand down letter[144] and described the complaint against him as 'serious'. The plaintiff described that exchange as follows -

She gave me the letter and said 'have a read of this, I'm going outside'. I cannot believe what I was reading, it was the biggest lie - I've never read anything like it, it was just completely made up, and I begged her, I said 'this is just not true, none of this happened', and she said 'it doesn't matter, you have to go home, you'll have a meeting and you can respond to it then', and I said 'just let me go down to HR and sort this out, this just never happened', and she didn't care. She just said, 'no, it doesn't matter, you have to go home and come back and you can deal with it later', so I left.[145]

184 For her part, Ms Hauser described the encounter as follows -

Well, when I gave him the letter, I said 'you need to read this properly and have a think about it, you know, and tell me what you think' and he just said 'it's bullshit', excuse me, he didn't buy it, he wouldn't have any - he wouldn't take any responsibility at all, none.[146]

185 I have earlier quoted the relevant parts of the stand down letter. That letter was likely based in one of Ms Trch's accounts of the incident in Bairnsdale. There was no mention in the letter of any other incidents of aggression or any history of untenable excuse making.

186 I have earlier referred to the plaintiff's preparation for the meeting on 26 May 2015, including the preparation of his three page response to the allegations appearing in the stand down letter.[147]

187 The plaintiff attended the meeting together with Mr Nunns. Ms Eagle and Ms Hauser attended, in effect, for the defendant. Each of the attendees gave evidence concerning events at the meeting, however it was essentially undisputed that -

(a) there was initially an issue concerning whether Mr Nunns could speak, although he was ultimately permitted to do so;

(b) the plaintiff read out his written response in full and Ms Eagle later took a copy;

(c) Ms Eagle asked the plaintiff why it was that Ms Trch would complain, to which the plaintiff referred to a potential discrepancy in the bill relating to his earlier stay at the Hotel; and

(d) there was discussion concerning 'serious misconduct' and whether another meeting would be necessary, at the conclusion of which the plaintiff and Mr Nunns were told that they would be advised of the result of the defendant's deliberations.

188 Ms Eagle prepared a detailed file note of the meeting, no part of which was ultimately said by either party to be inaccurate. That note includes the features of the meeting identified above, as well as some others, including the following -

Adam made further statements along the lines of he's been here 9 years without any history of aggressive behaviour.[148]

189 Notwithstanding Ms Hauser's claims concerning the plaintiff's history of aggression and making excuses - to which she had referred in her earlier email copied to Ms Eagle - neither of them is recorded as having said anything to that effect in response to the above.

190 The file note ends with the following stated 'observations' -

Jan's observations

Jan thought Adam presented himself very arrogantly and showed no remorse. Jan thought Adam seemed shocked to be told that we would be considering the matter further and he wouldn't be going back to work.

Suzanne's observations

Suzanne agrees that Adam showed no remorse because in Suzanne's opinion Adam truly doesn't think he has done anything wrong. He appears quite comfortable with the idea that the staff member has fabricated it all because "people do things others don't understand". He seems to be quite confident that as it can't be proven nothing will happen. Of course David Nunns is supporting him.[149]

[Emphases added].

191 I should pause to note that from the perspective of the plaintiff, the issue in the meeting to which he had been called was what had occurred in Bairnsdale. That is what was identified in the stand down letter to which he prepared a detailed written response.

192 In that regard, no part of the file note suggests that the plaintiff was told or ought reasonably to have anticipated that Ms Trch's account had already been or inevitably would come to be wholly accepted, and his wholly rejected.

193 In that setting, it hard to see how it was appropriate for either Ms Hauser or Ms Eagle to 'observe', let alone apparently hold against the plaintiff, that he had demonstrated 'no remorse' in respect of that which, from his perspective, was very much disputed and had not yet been found.

194 That said, it is not difficult to see how it was that the plaintiff's absence of remorse could have come to be 'observed' by Ms Hauser and Ms Eagle, and therefore included in the file note as somehow relevant to future deliberations concerning the plaintiff's fate. That is because from the earliest time Ms Hauser had made the point that the plaintiff was aggressive and apt to be unrepentant - including to Ms Eagle in the email dated 8 May 2015 - his demeanour in the meeting was evidently taken to be relevant to and confirmatory of at least the latter trait.

195 In that sense, the very fact that he did not wholly 'admit' the allegations made against him was apt to be taken to be confirmatory of the fact that the matters alleged against him were true. Yet, the foundation for that vicious circle of logic had never been made apparent to him, or Mr Nunns.

196 In any event, on 26 May 2015 at 6.08pm, Ms Eagle emailed Mr Gow-Hills, Mr Garwood, Mr Van Dyk and Ms Hauser.[150] The email was entitled 'Documentation for meeting tomorrow to consider outcome for Adam Elisha' and stated, relevantly, as follows -

Hi All

We have a 12pm meeting tomorrow to make a decision about the outcome for Adam Elisha. In preparation for the meeting, please find attached Adam's written response, file notes from the meeting held today and the letter of allegation that was provided to Adam last Tuesday.

Thanks.

197 It follows that the file notes from the meeting - including the 'observations' made by Ms Hauser and Ms Eagle - were conveyed to all participants in a meeting scheduled to determine the plaintiff's fate.

198 In evidence, Ms Eagle said that the next day, 27 May 2015, she made 'findings' concerning what happened in Bairnsdale. In that connection, she gave evidence as follows -

What view did you personally form as to whether the allegations were proven or not?---So after the meeting with Adam, I would have read the, his statement, and my notes, would have gone back to Madlen's, and I would have noted that I needed to follow up the issue of the discrepancy with the account.

Yes. And once you'd done that, what view did you form?---That on the balance of probability Madlen's account was an accurate account.

And why did you form that view of preferring her account to Mr Elisha's?---Madlen had no reason to make a complaint of that nature, there was nothing for her to gain from that. She was the owner of the business, so she would be quite adept at dealing with customers and potentially, you know, meeting their needs and potentially difficult customers, the fact that she was so upset with the encounter really, for me, that was the deciding factor that on the balance of probability Madlen's account was accurate.

What was the decision that was reached at the meeting, whether it be on the 27th or shortly thereafter, with regard to the disciplinary action to be taken?---So having accepted my findings as to where - that I believed on the balance of probability Madlen's account was accurate, it would have been discussed as to what was the appropriate outcome. So the decision was made to terminate Adam's employment.

Who had the power to make such a decision?---It would have been Leigh Garwood, the general manager of client services, and either Mike or, Mike Van Dyk or John Gow.

Do you recall now what view the others present at the meeting took as to whether the allegations were proved or not?---I don't have now a recollection, a strong recollection of what was said and who said what in those meetings, but the - my findings would have been accepted because if they weren't, then there wouldn't have been the decision to terminate Adam Elisha's employment.

Why was the view taken that the appropriate course was to summarily dismiss Mr Elisha in circumstances where he wasn't under any sort of formal warning at that time?---I really don't recall the conversations in any detail, sorry.[151]

199 Later, in cross-examination, Ms Eagle said that the 'observations' to which I have referred did not bear upon her 'findings'. As to when those 'findings' were made, Ms Eagle said -

it would have been after this meeting, I would have needed to go through his written statement in a lot of detail, um, I would have made those findings the next day, I'm going to say, but I can't specifically recall.[152]

200 In respect of the earlier email dated 8 May 2015 from Ms Hauser to her and Mr Van Dyk - which referred to the plaintiff's aggression and excuse making - Ms Eagle said that it did not bear upon her investigation and that she had 'put it out of [her] mind'.[153]

201 The evidence to which I have referred was redolent of the general state of Ms Eagle's memory of the relevant events. Even if Ms Eagle made 'findings' in the manner referred to in her evidence, I do not accept that the 'observations' recorded in the file note did not bear upon them. Nor do I accept that she put Ms Hauser's observations concerning the plaintiff's aggression and excuse making out of her mind.

202 Various witnesses gave evidence concerning the meeting on 27 May 2015 - in respect of which no file notes seem to have been taken by any participant, and no minutes were taken. I have already referred to the substance of the relevant evidence of Ms Eagle.

203 For her part, Ms Hauser was 'honestly not sure' whether she attended the meeting. She said, 'I imagine I would have, but I can't recall it in detail'.[154] However, in cross-examination, Ms Hauser confirmed that the decision to terminate the plaintiff's employment was taken by what senior counsel for the plaintiff referred to as 'the gang of four'. Inferentially, that was Mr Gow-Hills, Mr Van Dyk, Ms Eagle and Ms Hauser.[155] In respect of the bases for that decision, Ms Hauser stated, among other things, that -

she [Ms Trch] made it very clear that she felt threatened and that she thought that Adam was extremely aggressive, I'm not going to, you know, weigh into that one, I think it's important that - I think it's important that, you know, if that was how she felt, then that needs to be honoured, I don't think that's something that you can say, oh, that's not the case, that's exactly what Adam does.[156]

204 Mr Van Dyk believed that the meeting occurred. In substance, he said that 'we' believed Ms Trch over the 'denials' of the plaintiff and 'made the decision accordingly'.[157] His memory of events was plainly eroded. However, he said that termination had been the appropriate course because of 'that sort of intimidating behaviour, the aggressiveness, the fact that the person had felt humiliated'. He could not recall whether 'lesser disciplinary action' had been considered.[158]

205 I have earlier indicated that Mr Gow-Hills appears to have been the ultimate decision maker. He said that his memory of the meeting was 'a bit hazy' and that he had no memory of where it happened and whether everyone was there.[159]

206 Nonetheless, Mr Gow-Hills gave an account of the decision made, and the reasons for it, on several occasions in the course of his evidence - indeed, he tended to fall back to that account whether it was directly relevant to the question he was being asked or not. In substance, however, he said -

When I'm weighing up two versions of events one of which describes Mr Elisha's behaviour as inappropriate, aggressive, intimidating, and his response to that is 'none of that's true, in fact it was the proprietor of the hotel who was acting inappropriately towards me', and from my perspective, it's inevitable that I'm going to think about what do I - what have I previously heard in relation to Mr Elisha's behaviour, or the way that he interacts with other people, and because I could recall that words like intimidating and aggressive had been applied to Mr Elisha, that gave weight to the fact that I think it's more likely that the proprietor's description is, um, the true description of what actually happened in that interaction.[160]

207 As to the relevance of the alleged history of aggression and excuse making, Mr Gow-Hills said -

Those, my recollection is those other matters only went so far as to trying to figure out what the correct version of events in the interaction were, not whether we now need to take some action in relation to Mr Elisha because of those in themselves, it's all about what actually happened in Bairnsdale or didn't happen in Bairnsdale, and is it likely, more likely that the way the proprietor describes Mr Elisha's behaviour is the true and correct description or is Mr Elisha's denial of that and contrary description more likely, there didn't - I guess what I'm trying to say is that was the matter at hand, that's what the decision about whether Mr Elisha's having engaged in serious and unlawful misconduct or not and whether or not that should result in termination of contemplate revolved around the matters in Bairnsdale.[161]

208 Mr Gow-Hills ultimately described the 'key factors' in his decision making as follows -

... do I believe that the behaviour occurred or not, and importantly, how has Mr Elisha responded to these matters being put to him. Does he - is he - does he demonstrate any awareness that his conduct towards the proprietor of the hotel might have been out of order or not. If - and my recollection is there was no recognition of that, there was a denial of that, that he in fact was, um, the one who was being treated with, I don't know if aggression is the right word, but inappropriate conduct on behalf of the hotel proprietor, there was no recognition that 'perhaps I should have done something differently', or an acceptance that 'perhaps I shouldn't have done what I did in Bairnsdale'.[162]

209 As I have earlier noted, Mr Gow-Hills believed that the plaintiff had not been truthful concerning the incident 'to avoid accountability for his actions' and, consequently, that the trust and confidence of the defendant in the plaintiff's ability to perform his duties was 'gone'.[163] It followed, in his view, that it was necessary to summarily terminate the plaintiff's employment.

210 In the course of his evidence - particularly in cross-examination - Mr Gow-Hills clung increasingly tightly to the notion that the history of the plaintiff's aggression and excuse making had been relevant 'only' to the determination concerning what had occurred in Bairnsdale and not the determination of the subsequent issue of penalty. As I have indicated, his answers to that effect were not always responsive to the question that he was being asked. In any event -

(a) in the evidence to which I have referred it was plain that 'aggression' and a lack of 'accountability' must have been relevant to Mr Gow-Hills' consideration of penalty;[164]

(b) in that regard, it was never clear why a distinction of the kind to which Mr Gow-Hills referred would ever have been made: it was evident that in Mr Gow-Hills' mind the history of aggression and lack of 'accountability' were relevant to what happened in Bairnsdale and, conceptually at least, must equally have been relevant to the considerations of risk evident in his mind when considering the question of penalty; and

(c) it was not clear how Mr Gow-Hills could be so certain that he had drawn such an unlikely distinction - particularly because he had commenced the relevant part of his evidence (in chief) by disclaiming his memory of the meeting as 'a bit hazy' and had also said -

I'm torn between what do I recall actually thinking at the time as opposed to what would my thought processes have been at the time.[165]

211 I should add that in cross-examination, Mr Gow-Hills was taken to an email sent by him to Mr Van Dyk on 29 May 2015 at 7.43am. That email responded to an email from Ms Eagle the previous day at 12.28pm which queried whether a letter from Mr Nunns - to which I have earlier referred - would 'change our proposed strategy'. In response, Mr Gow-Hills stated -

The ASU want him back at work because they realise he is venerable [sic] while he has "serious misconduct" hanging over his head.

They also now have a basis for an adverse action claim - they can say we sacked him because he threatened to exercise his workplace right to lodge a dispute with the commission. Will be partly why they sent yesterday's letter.

All the more reason to terminate before they lodge a dispute.

The serious and wilful arguments at the FWC will turn on:

subregulation (1), conduct that is serious misconduct includes both the following:

(a) wilful or deliberate behaviour by an employee that is inconsistent with the continuation of the contract of employment;

(b) conduct that causes serious or imminent risk to:

the health or safety of a person; or

the reputation, viability or profitability of the employer's business.

We will argue that Adam's aggression in Bairnsdale is serious in itself and contributes to our assessment of ongoing risk to health and safety of others and to reputation. It is the latest example in a pattern of aggression that Jan can attest to. We do need to get those previous examples and pattern on the record. In addition Adam demonstrates no awareness that he was/is aggressive. Which adds to the unacceptable risk.

ASU will argue we can't expand the matters we are considering but that is our choice not theirs.

We need to organise a phone meeting with them today to hear them out on our "pattern of aggression" judgement. Phone meeting because david will declare himself unavailable to attend a in person meeting. He may also try that with a phone meeting. I guess if they dodge the meeting we should terminate without their response.

Mike do you think you need to step in and take over from S? She clearly wants "out" and she might go to pieces.[166]

[Emphases added]

212 Mr Gow-Hills described his email as 'starting to articulate what our defence will be' and as a call for any 'written records' and then retreated into saying -

I think that the point I'm making is that the summary termination stands on Mr Elisha's behaviour in Bairnsdale.[167]

213 Mr Gow-Hills did not explain how it was that the claimed history of the plaintiff's aggression - or, as it was described in his email, the 'pattern of aggression that Jan can attest to' - could have been relevant to determining what occurred in Bairnsdale as well as relevant to any later defence of the consequential decision taken to terminate the plaintiff's employment but, as he would have it, not actually taken into account in the making of that very same decision.

214 It will be evident from the above that I do not accept the evidence of Mr Gow-Hills or, for that matter, any of the other participants in the meeting, to the effect that the claimed history of the plaintiff's aggression and excuse making was either not taken into account at all or taken into account as relevant 'only' to determining what happened in Bairnsdale. It is much more likely that it was also taken into account in determining that the plaintiff's employment should be terminated.

215 I should mention one further part of Mr Gow-Hills' evidence, namely concerning whether the plaintiff ought to have been told about Ms Hauser's claims in respect of his history of aggression and excuse making. In that connection, Mr Gow-Hills stated -

I would say that, um, in the meeting that, where response from Mr Elisha's being sought about what did or didn't happen in Bairnsdale where he's giving his version of his behaviour, it would be best practice to put to him that 'you are, you'd be aware, would you not, Mr Elisha, that you have a difficult history with your own manager', um, and, ah, you know, 'it seems that this behaviour that's being described might be consistent with that'. I don't know whether that was put to him or not, but if - that would be a good thing to do, if you're in that meeting. Because you're otherwise just left with two versions of events, and, um, what you'd be doing is inviting Mr Elisha's comment about all the things that you are trying to resolve as you're trying to resolve those two versions.[168]

(a) the detailed file note of the meeting on 26 May 2015 does not indicate that any such claims were ever put to the plaintiff;

(b) indeed, the file note indicates that the occasion for doing so presented itself when the plaintiff referred to his employment history of over 9 years without any aggressive behaviour, but still nothing in response is recorded as having been said by either Ms Hauser or Ms Eagle;

(c) that file note was before Mr Gow-Hills and all others at the meeting on 27 May 2015; and

(d) it is not evident that Mr Gow-Hills made any enquiry at the meeting in order to determine whether the 'best practice' to which he referred had taken place prior to making any of his determinations concerning the plaintiff.

217 Much of what I have said concerning the evidence of the various participants in the meeting on 27 May 2015 serves to underline the caution required to be exercised when considering their evidence.

218 Notwithstanding the above, it will be evident that the thinking of those involved seems to have revolved around a number of propositions - that are to some extent highlighted in various parts of the evidence extracted above. In that regard, the participants seem variously to have had in mind that -

(a) Ms Trch had no motive to complain;

(b) Ms Trch had been upset - indeed, Mr Gow-Hills claimed that her 'mental health' had been damaged 'through that interaction';[169]

(c) the plaintiff had been 'aggressive' in Bairnsdale;

(d) the plaintiff had not been 'accountable' for what he had done;

(e) the plaintiff had simply denied what had occurred;

(f) 'that's exactly what Adam does';

(g) the plaintiff had a history of aggression and excuse making (or failure to take responsibility or 'accountability'); and

(h) it was necessary that the plaintiff's employment be terminated because there was a risk of future 'aggression'.

219 The fragility in the propositions concerning Ms Trch's distress and motives, and the aggression in the plaintiff's behaviour in Bairnsdale, will be evident from my earlier findings concerning what there occurred.

220 Nonetheless, starting from premises of that rather precarious kind, the participants in the meeting each seem to have considered that it was necessary to either accept the account of Ms Trch in full, or the 'denials' of the plaintiff in full. The only participant who seemed to understand that 'there were some areas where there was consistency' was Mr Gow-Hills.[170] Nonetheless, as I have noted, he said 'I believe Ms Trch's version'.[171]

221 It is that collective mindset of an evidently 'all or nothing' nature that made Ms Hauser's claims of a history of aggression and excuse making so apt to influence the decision making. That is, the history facilitated a self-reinforcing pattern of reductionist thinking of the following kind -

(a) the plaintiff has a history of aggression;

(b) the plaintiff has avoided the consequences of that aggression in the past by making excuses;

(c) Ms Trch is complaining of aggression;

(d) in response to which, the plaintiff is (again) making excuses;

(e) consequently, Ms Trch's account should be accepted;

(f) the issue in respect to penalty is risk to the health and safety of others;

(g) the history, and what is accepted to have occurred in Bairnsdale, show that the risk presented by the plaintiff is unacceptable; and

(h) consequently, the plaintiff's employment should be summarily terminated.

222 Elements of that logic are evident in the propositions to which I have referred and were more broadly evident in the evidence of the participants in the meeting, particularly Mr Gow-Hills.

223 Such logic was also apt to and in fact did distract from -

(a) any perceived need to further investigate the motivations and feelings of Ms Trch and the plaintiff respectively;

(b) the plaintiff's long history of otherwise good and competent service;

(c) the contents of any of the plaintiff's written performance reviews;

(d) the fact that a much earlier formal warning in respect of computer use had evidently been productive;[172]

(e) 'best practice' - in terms of putting to the plaintiff the claimed history of aggression and excuse making; and

(f) any need to engage with the subsequent correspondence by Mr Nunns on the plaintiff's behalf.

224 In a setting in which important elements of a reductionist logic of the kind to which I have referred had been planted by Ms Hauser early on, in respect of which the plaintiff was never afforded any notice or opportunity to respond and his subsequent responses were taken to affirm that of which he was being unknowingly accused, it was virtually inevitable that the plaintiff's employment would ultimately come to be terminated.

225 Further, that was an outcome that my earlier consideration of the events in Bairnsdale tends to suggest was unjustified and should have been identified as such if any properly careful approach had been adopted, and the circumstances and positions of each of the participants in the events in Bairnsdale considered with any degree of sympathy for their respective positions.

226 Albeit that each of the participants in the meeting on 27 May 2015 sought to suggest that, in effect, the process adopted and outcome achieved was both justified and fair, I cannot accept that is so. It was a process and outcome that was unfair, unjust and wholly unreasonable.

227 For that matter, it is staggering to me that each of the participants gave evidence of their training and qualifications, many of them in human resources, yet still sought to maintain that what they had been involved in was justified and fair.

228 It was perhaps even more staggering that the unfairness to which I have referred was largely apparent on the face of the evidence given by the respective witnesses in chief and before any cross-examination was undertaken.

229 In the setting to which I have referred, on 29 July 2015, the termination letter was emailed to the plaintiff.[173]

230 I have earlier extracted the part of the termination letter which purports to identify why it was that the defendant considered the plaintiff's 'behaviour' to have amounted to 'serious misconduct', namely that it -

• Damages Vision Australia's reputation within the Bairnsdale community
• Caused a risk to the health and safety of a person
• Is a failure to uphold Vision Australia's values
• Is a failure to follow a lawful and reasonable direction
• Has resulted in our loss of trust and confidence in your ability to undertake the role of Adaptive Technology Consultant

231 The points identified are stated so broadly as to be effectively meaningless. There was a degree of cross-examination directed to the various topics. When asked, the witnesses rather struggled to give any of it real meaning.

(a) he did not know, and had not investigated, whether there had been any reputational damage in the Bairnsdale community - but said that his 'position' was, in effect, that the plaintiff's 'behaviour' had caused reputational damage with Ms Trch who was a member of the Bairnsdale community;[174]

(b) he could not recall 'exactly what the lawful and reasonable direction was';[175]

(c) the failure to uphold the defendant's values was comprised by a 'failure to uphold person centredness' - albeit that no such value is identified directly in the termination letter;[176]

(d) he could not 'from a technical perspective' identify any basis upon which to find that the plaintiff was no longer able to perform the role of adaptive technology consultant;[177] and

(e) he believed that there had been harm to Ms Trch and her wellbeing.[178]

233 In reality, the last point was the only point. As I have earlier explained, even that point was considerably more subtle than the form in which it was asserted at trial by Mr Gow-Hills ('serious harm had been caused to Ms Trch'; 'there had been an injury to her mental health').[179] Of course, Mr Gow-Hills had never met Ms Trch, or even spoken with her.

234 In any event, none of it was the real reason why the plaintiff's employment was terminated: it will be evident from what I have already said that the plaintiff was considered to be a serially aggressive and unrepentant bully whose activities - including those in Bairnsdale - presented a risk to the defendant as a consequence of which his employment had to be terminated.

235 That was, of course, not an allegation of which the plaintiff was ever given any notice or to which he was ever given an opportunity to respond. Indeed, it was not even in the letter that terminated his employment and purported to explain to him why that had occurred. It was also an allegation that lacked any proper foundation or real substance.

236 In my view, for the reasons which I have sought to outline, from the point at which Ms Hauser became involved to the sending of the termination letter by Ms Eagle on 29 May 2015, the process adopted by the defendant was nothing short of a sham and a disgrace.

237 In those circumstances, it is not remotely surprising that following the commencement by the plaintiff of unfair dismissal proceedings under pt 3.2 of the Fair Work Act 2009 (Cth) ('Fair Work Act'), the proceeding was settled very shortly thereafter with the defendant apparently paying to the plaintiff his maximum entitlement.

238 Further, the fact that the defendant's earlier process was nothing more than a sham and a disgrace is underlined by what actually occurred in the unfair dismissal proceeding prior to it being settled.

239 I have earlier noted that it is evident that in the email of 29 May 2015,[180] Mr Gow-Hills had been alive to the risk of unfair dismissal proceedings being commenced as a consequence of the manner in which the plaintiff had been dismissed from employment. In that email, he had specifically identified the need to get the examples of previous aggression referred to by Ms Hauser 'on the record' in order to establish that there had been a 'pattern'.

240 Notwithstanding that call, however, the defendant's subsequent written response to the plaintiff's unfair dismissal claim made no mention of either any 'pattern' or any 'examples' of conduct that might be said to have constituted such a 'pattern'.[181]

241 To me, that tends to confirm my perception of the quality of Ms Hauser's evidence concerning any such earlier events: it was all hopelessly vague and insubstantial. I tend to think that it was also most likely exaggerated by Ms Hauser for the purposes of initially seeking to blacken the plaintiff and subsequently seeking to defend her actions in the context of the present proceeding.

242 It follows that in my view, there was really never anything of substance in Ms Hauser's slurs concerning prior aggression, albeit that it operated on the minds of the defendant's decision makers (together with the allied slur of untenable excuse making) in order to ensure that the plaintiff lost his job.

243 Further, it will be evident that the unfair dismissal proceeding was conducted by the defendant in a manner that continued to guard and therefore compound the secret at the heart of why the plaintiff had really been dismissed from his employment.

244 That, in turn, had a significant impact upon the nature and quality of the plaintiff's subsequent psychological suffering.

245 For completeness, I should say that the evidence of Mr Gow-Hills, in particular, was infused with high-minded expressions of outrage about the 'appalling' nature of the plaintiff's conduct and the correctness of him having been dismissed as, it was said, his conduct had been inconsistent with the defendant's 'values'.

246 It was, however, never clear in the evidence of Mr Gow-Hills, or that of any of the defendant's other witnesses who spoke on the topic, how it could be that dismissing an employee for conduct based in a combination of slurs that were hidden from him could itself ever have been in compliance with the values of 'person centredness', 'honesty' and 'accountability' that were said to have been so inviolable that the plaintiff was correctly dismissed for having breached them.

247 It is troubling that all of the witnesses deployed by the defendant in order to advance sentiments of that kind seem to have no insight at all into the cruel nature of that irony.

E The psychiatric and other effects upon the plaintiff

248 The plaintiff gave evidence that he has been significantly affected psychiatrically by the termination of his employment. He said -

without any exaggeration, it's been catastrophic, there's been not one single aspect of my life that hasn't been either destroyed or obliterated. I don't know how else to say it other than that.[182]

249 Later, the plaintiff explained his present thinking and condition as follows -

Shock, still, to this day, I'm still to this day in shock that something like this could even happen. I'm just still confused as to why this happened to me, um, I'm confused how it got from some random person who I never even gave a second thought to gossiping to two colleagues I don't even know, and how it transpired that, I mean seeing the chain in black and white, but realistically, I'm just shocked that it went all that way without one person even saying 'hang on, let's hear his side of the story first'. I think about how all my friends have gone, I have no social life anymore. That was - that's hard, that's probably the hardest. I used to go out every night, I used - I was never at home, not once, and now I'm home all the time. I have no friends anymore. Like I said, the relationship with my family has deteriorated dramatically, I used to be very close with my family but not anymore, I don't want to go to birthdays, or dinners, everything I've lost, when I look - I can't even concentrate on television and I look at people on TV and I think they're paid actors, they've got a job. When I went into hospital, I thought, well, that's great, these people are doing a good community service, they're helping people, and I'm completely useless and hopeless now at everything. It's just it's a lot, it's a lot to cope with.[183]

250 There was a quality of acute bewilderment in that evidence: from the beginning, the plaintiff had not been able to understand what had really occurred to him and why. It was clear that he had ruminated over the details of the events and sought to interpret and make sense of them. It was very clear that the unfathomable nature of what had occurred contributed very significantly to the disturbance of his mind and, consequently, the chronic psychiatric illness of which various medical witnesses gave evidence.

251 While there was a suggestion in the pleading, and in passing in the plaintiff's evidence, that the issues relating to his 'micromanagement' complaint against Ms Hauser in mid-2014 continued to weigh on his mind, none of that was freestanding.[184] That is, the plaintiff's psychiatric condition - and therefore his claim - relates to the circumstances in which his employment came to be terminated. It was clear enough that without those circumstances there would be no claim.

252 The plaintiff's mother said that she was with him on the day he was dismissed. She said -

he ... read the message, he was in shock, and in disbelief, and really, it's just meandered down ever since. He was just in shock really. Weeks after he was in shock really.[185]

253 She said that he was now 'just a totally different individual'[186] and the plaintiff's sister gave evidence to similar effect.[187]

254 The plaintiff saw Mr Walker on two occasions in June 2015. The plaintiff's concerns about 'unfair dismissal' feature heavily in the notes of the first consultation and were again noted early in the second and final consultation.[188] In July 2015, Mr Walker reported that -

the recent unexpected dismissal from Vision Australia has been associated with a large increase in worry, anxiety and insomnia, and subsequent financial stress.[189]

255 In this general connection, I acknowledge the elements in the evidence, emphasised by the defendant in submissions, that tend to suggest that the plaintiff may have continued to function to some degree in the period of two or three months after his dismissal.[190] In my view, however, that is not inconsistent with the other evidence to which I have referred; which tends to suggest an initial shock, but that the psychiatric illness and disability of the plaintiff likely built as time passed and as he continued to ruminate over what had occurred.

256 In September 2015, the plaintiff was referred to Mr Robert Ellery, clinical psychologist. At that time, Mr Ellery considered the plaintiff to have a major depressive disorder as well as an adjustment disorder with depressed mood resulting directly from his 'alleged unfair dismissal'. He considered that the plaintiff had no capacity for work which was likely to continue for the foreseeable future.[191]

257 Mr Ellery saw the plaintiff on about 150 occasions between September 2015 and January 2021. In his oral evidence, it was evident that he had observed the plaintiff's condition to fluctuate at times. He considered that the plaintiff's involvement in legal proceedings to have 'slowed or retarded his progress to recovery'.[192]

258 In his final report dated 11 February 2020, Mr Ellery confirmed that he was continuing to provide 'treatment for extreme depression, anxiety and PTSD ... against a background of ongoing litigation and medical reviews'. He said that he had not observed any sustained remission. He considered the plaintiff to be at 'significantly greater risk of self-harm and marginalization within the wider community'.[193]

259 Dr Greenbaum, psychiatrist, saw the plaintiff on 10 occasions between March 2018 and September 2020. In oral evidence, he said that he had been -

focussing on his symptomatic profile of depressive symptomatology ... in my assessment engaging him I tried to deal with his response and his feelings about the injuries that he'd sustained, I made some efforts to help, try to help him review his thoughts and feelings and attitudes about what he'd gone through, I was not successful with that, and I remained focussing on trying to give him some symptomatic relief in terms of the depressive symptoms and anxiety symptoms that he was describing.[194]

260 He did not think that the plaintiff was able to work and thought that he was totally impaired in his social functioning.[195]

261 Cross-examination of Dr Greenbaum was largely directed to the plaintiff's involvement in litigation. It was not put that the plaintiff would recover from his illness when the litigation is over, and Dr Greenbaum did not say that either. Dr Greenbaum did say that litigation was a factor that needed to be resolved so that 'those who were dealing with his psychological issues would then have a clearer field'.[196]

262 Dr Greenbaum did say that he had not seen any evidence of paranoid personality traits and that the plaintiff had not given any indication of issues with anger and frustration prior to the termination of his employment.[197]

263 There was evidently a suggestion that the plaintiff had ceased treatment with both Mr Ellery and Dr Greenbaum as a consequence of a falling out - although the issue was not explored in cross examination with either of them.

264 The plaintiff's more recent treaters also gave evidence, namely Dr Yang, general practitioner, Mr Vanderputt, psychologist, and Dr Lewis, psychiatrist. The plaintiff also called Dr Paoletti, medico-legal psychiatrist. I did not regard any of that evidence as altering the overall picture. Each referred to the plaintiff's diagnosis and severe presentation.

265 In particular, in March 2022, Dr Lewis reported that -

Mr Elisha is completely incapacitated for both pre-injury employment and all alternative employment. The total work incapacity is consequent to depressed mood, poor motivation, sleep disturbance, cognitive difficulties, and markedly reduced stress tolerance.

The majority of Mr Elisha's efforts are simply geared towards completing basic activities of daily living. His selfcare is poor, including a description of irregular showering and poor dentition consequent to neglect.[198]

... Elisha presented to me as an individual that he had been struggling with quite a severe major depressive disorder for quite some time. At the time that he first engaged me he explained to me he was under the care of a previous treating psychiatrist, but had no significant improvement in his mood over a number of years, and he expressed to me that he continued to struggle with typical hallmarks of depression, low mood, very poor motivation, reduced self-care, and he impressed as an individual, his level of functioning was at significant variance to his pre-injury level of functioning. On that basis he required a review of his treatment, he'd been treated on the anti-depressant Escitalopram, which is a commonly used anti-depressant on quite a high dose, 60 milligrams for the previous four years, and on that basis in consultation with Mr Elisha a decision was made to cease that anti-depressant and trial another anti-depressant. Unfortunately we embarked on a number of changes in anti-depressant because he had a history of either poor response to anti-depressant treatment or poor tolerability, and since I first engaged him I think he's been trialled on four different anti-depressants, the first anti-depressant was Pristiq followed by Peroxetine and more recently a trial of an anti-depressant Duloxetine, so unfortunately he hasn't responded to anti-depressant treatment. The next step in his treatment is to now consider an inpatient psychiatric admission for consideration of electroconvulsive therapy, or ECT treatment, which is recognised as potentially being a benefit in individuals such as Adam who have significant resistance to anti-depressant treatment.[199]

267 Later, Dr Lewis summarised the position as follows -

We know with individuals who have failed to respond to multiple anti-depressants, and individuals such as Mr Elisha who have very chronic treatment resistant clinical presentations that the prognosis is generally quite poor and unfavourable. This is despite the fact that in the time that Mr Elisha has been under my care he's done everything in his power to try and better or improve his psychiatric state, he's been entirely compliant with all treatment recommendations, attended appointments regularly, he has been willing to trial anti-depressants despite having experienced significant side-effects in the past including significant withdrawal symptoms, so I certainly can't fault Mr Elisha in terms of his commitment to his recovery. He is unfortunately in a small percentage of individuals that are resistant to conventional treatment, and accordingly his quality of life is accordingly very compromised.[200]

268 In cross-examination, Dr Lewis was asked about the plaintiff's inpatient admission to the Melbourne Clinic in early 2022. Dr Lewis later confirmed that the admission had not resulted in any improvement in the plaintiff's mental state.[201]

269 Dr Lewis was also asked about the plaintiff's involvement in litigation, the proposed course of electro-convulsive therapy and earlier consideration given to trans-cranial magnetic stimulation.

270 In respect of the role of litigation, in particular, Dr Lewis explained that -

he was pre-morbidly a high functioning young individual, I recall him telling me that two years prior to his work issues he was the MC of his sister's wedding and confidently speaking in front of many people, he prided himself on his employment, on his social recreational interests, and in the context of these multiple losses, he's lost significant control and power over his life, and he now, he found himself, his only recourse being in a compensation scheme, which naturally many people find adversarial by nature, he then found himself experiencing significant financial strain, this is an individual who previously was financially independent, this is an individual who found himself very reliant on his parents. So his only safety net was a compensation scheme, which in truth he felt was adversarial and unsupportive, and I think it was in that context that he became extremely anxious, understandably, and I think that to some extent has informed some of his behaviours since the work injury.[202]

271 Dr Lewis explained further that the plaintiff's 'severe depressive disorder' is underpinned by biological factors which 'significantly overshadow any potential benefit that would follow the cessation of the litigation'.[203]

272 As I have earlier indicated, I do not accept that there is any irregularity in Dr Lewis' evidence, or, for that matter, that of Mr Vanderputt.

273 I have also earlier noted that the defendant called Dr Timothy Entwisle, medico-legal psychiatrist. Dr Entwisle saw the plaintiff in December 2017 and his report referred to partial remission at that time and aspects of 'secondary gains' in connection with litigation.[204] Much of that seems to have been based in the plaintiff's own history at that time to the effect that his symptoms had remitted somewhat since the hearing of his Magistrates' Court proceeding in 2017.

274 The defendant also called Associate Professor Doherty, psychiatrist. Associate Professor Doherty examined the plaintiff on three occasions, most recently in March 2022.

275 After the first such consultation, in 2018, Associate Professor Doherty was of the view, among other things, that the plaintiff's condition 'will only be relieved after resolution of the legal proceedings'.[205]

276 By the time of his most recent examination of the plaintiff, in March 2022, Associate Professor Doherty was of the view that the plaintiff was suffering a major depressive disorder, but that the maintenance of his presentation was to be explained by his disturbed personality. More broadly, he opined that -

He presents as a psychologically troubled person caught up and trapped in a sense of aggrievement, pre-occupied about the unfairness of what has happened to him. He moves from conflict to conflict with a progressively narrower [range] of social and psychological functioning. The conflicts have to do with his perception as to how he is treated by others, and his heightened sensitivity to nuances and slights to his sense of his capacity, competence and reputation.

...

The prognosis is most unfavourable. There has been no progress made. He is [now] entrenched in a threatening world of his making and will find it very difficult to return to normal activities, appropriate community adjustment and also gainful employment.[206]

277 In oral evidence, Associate Professor Doherty observed that the plaintiff had presented with very poor eye contact. He said that the plaintiff had 'paranoid traits and obsessionality traits'. He said that he did not believe that the plaintiff 'would be able to move forward until the legal proceedings are finished'.[207]

278 In cross-examination, Associate Professor Doherty confirmed that -

(a) the plaintiff is severely psychiatrically impaired and unable to work;

(b) the termination of his employment activated 'quiescent' aspects of his personality and has created pervasive problems for him;[208]

(c) there had been 'a very obvious and significant change in his demeanour and his way of relating and his behaviour' since his termination;[209]

(d) 'success' in the litigation might allow him to move on with 'a bit more cheer', but he would continue to carry the 'paranoid and obsessional traits';[210]

(e) in such a context, the plaintiff 'would get back to having an employment capacity', although he was 'not too sure how long it would take, [and] it would depend on the outcome';[211] and

(f) even if he were 'compensated', there were 'many variables and it's hard to estimate ... there could be a whole range of reasons why though the judgment is favourable, he's critical of certain aspects of it, and so on'.[212]

279 I should note that the parties tendered a range of further documentary material and medical opinions, however I do not consider them to alter the position exposed in the oral and other evidence to which I have already referred.[213]

(a) the termination of the plaintiff's employment has had a devastating psychiatric effect upon him;

(b) at the very least, the plaintiff has had and continues to have a major depressive illness - his current treating psychiatrist, Dr Lewis, describes it as chronic and moderately severe;[214]

(c) the psychiatric effect on the plaintiff has been profound: he has no capacity for work and his social functioning is very limited;

(d) the plaintiff has had a recent inpatient admission;

(e) the plaintiff faces continuing treatment, including psychotropic medications;

(f) Dr Lewis has sought and obtained approval for the conduct of a course of electro-convulsive therapy;

(g) the prognosis for the plaintiff is realistically not good; and

(h) on the evidence, the plaintiff's psychiatric condition seems likely to have also aggravated his underlying ulcerative colitis.[215]

281 Some aspects of the evidence to which I have referred will need to be examined in more detail in connection with particular submissions advanced by the defendant concerning the assessment of any entitlement of the plaintiff to damages.

282 As against each of the ways in which the plaintiff ultimately put his case, the defendant relied upon the terms of the deed of settlement executed by the plaintiff in settlement of his unfair dismissal proceeding in July 2015.[216]

283 In that regard, the deed includes the following clauses -

In consideration of the payment of the settlement sum the Employee releases and forever discharges the Employer and each of its Related Body Corporate (as defined by the Corporations Act 2001), officers, employees or agents from all claims, demands, actions, suits, costs, interest and expenses of whatsoever kind which he has or but for this Deed of Settlement would have had, arising out of or incidental to his employment, proceedings and the termination.

The Employee acknowledges that the payments and benefits set out in this Deed represent all payments in respect of his remuneration and all statutory, contractual and other entitlements including but not limited to wages, notice, redundancy, severance pay, superannuation, annual leave, annual leave loading and any other entitlements which the Employer is or may be obliged to pay or provide to the Employee up to and including the date of termination and that he is not entitled to any further payment from the Employer in respect of his employment, the proceedings and/or termination of his employment.

This Deed of Settlement may be pleaded as a full and complete defence by any party to any actions, suits, or proceedings commenced, continued or taken by another party or on its behalf in connection with any of the matters referred to in this Deed.

284 The defendant submitted that the deed of settlement gives rise to an estoppel,[217] as the subject matter of the unfair dismissal proceeding was 'the termination of the plaintiff's employment' pursuant to the defendant's enterprise agreement. It submitted that -

The Release clause of the deed unambiguously precludes any further claim under the Vision EA by its reference to 'employment' based on the Vision EA, its reference to the 'proceeding' which had its foundation in the Vision EA, and by its reference to 'termination', the power for which arose from the Vision EA.[218]

285 It will be evident that the plaintiff's present claims are not made directly 'under the Vision EA'. In that regard, the argument of the plaintiff seems to be that the relevant clause of the Vision EA was incorporated into the contract of employment and breached as a term of that contract; not that it was breached irrespective of whether it was incorporated into the contract or not.[219] In any event, the argument of the defendant seemed to rely upon the broad releasing words to which I have referred.[220]

286 On its face, of course, the language in the deed of settlement might be thought to embrace the plaintiff's present claims, as they may broadly be said to be 'arising out of or incidental to his employment, proceedings and the termination'.

287 However, the proper approach to the construction of releasing words of such a general kind was confirmed by Dixon CJ, Fullagar, Kitto and Taylor JJ in Grant v John Grant & Sons Pty Ltd,[221] in respect of which the headnote summarises the applicable principle as follows -

The general words in a release are limited always to that thing or those things which were specially in the contemplation of the parties at the time when the release was given.

288 In the present instance, as I have noted, the defendant acknowledges that the proceedings settled by the deed were 'very clearly about the Vision EA'.[222]

(a) refer specifically to the unfair dismissal proceeding brought in the Fair Work Commission;

(b) define that as the 'proceedings'; and

(c) characterise the compromise between the parties as being to 'settle all claims in relation to the employment, termination and proceedings'.

290 I note that the claims in relation to the employment and termination are there linked to the 'proceedings'.

291 Further, the operative terms of the deed, to which I have already referred, also link the claims arising out of or incidental to the employment and termination to the 'proceedings'.

292 It follows, in my view, that the terms of the deed should not be construed as having effected a release of claims beyond those made in the unfair dismissal proceeding.

293 In that regard, it is not apparent that the claims presently pursued could reasonably have been within the contemplation of the parties when settling the unfair dismissal proceeding in July 2015. In particular -

(a) no claim in respect of psychiatric injury was made in the unfair dismissal proceeding;[223]

(b) indeed, in that proceeding, the plaintiff could not have obtained any component of compensation in respect of 'shock, distress or humiliation, or other analogous hurt';[224]

(c) the unfair dismissal proceeding was settled after the plaintiff last saw Mr Walker on 17 June 2015,[225] but before he commenced attending Mr Ellery on and from 28 September 2015;[226] and

(d) the present proceeding was commenced on 27 August 2020 - which is more than five years after the settlement of the unfair dismissal proceeding.

294 It follows that the defendant's contentions in respect of the operation of the deed of settlement must be rejected.

295 As earlier noted, the plaintiff's written contract of employment was signed by him on 27 September 2006.[227]

296 In the present context, the following terms of the contract of employment assumed particular significance -

Conditions of Employment

Your engagement will be governed by the terms of this letter and the Community Employment, Training and Support Services Award 1999.

...

Termination

Either party may terminate this contract by giving one (1) month's written notice. The Organisation reserves the right to require you to work out the notice period, pay you out in lieu of working or a combination of both.

Other Conditions

In addition, Employment Conditions will be in accordance with regulatory requirements and Vision Australia Policies and Procedures. Breaches of the Policies and Procedures may result in disciplinary action.

...

ACCEPTANCE:

This contract may be amended from time to time by mutual agreement between the parties.

I have read and fully understand the terms and conditions of employment detailed in this contract. I agree to comply with these terms and conditions of employment and all other Company Policies and Procedures.

I certify that the details in my application/curriculum vitae are true and correct; and that I have no knowledge of any fact or circumstance, which may prevent fulfilment of the terms of this contract.

297 I have earlier referred to the manner in which the present claim was pleaded.[228] In particular, the plaintiff averred that the following documents were 'incorporated' into the contract of employment -

(a) a Vision Australia disciplinary policy and a Vision Australia disciplinary procedure 'on and from July 2008';

(b) further or alternatively, a (different) Vision Australia disciplinary procedure 'in about April 2015'; and

(c) further, the Vision EA 'at all relevant times including as at 2015'.

298 In this general connection, the plaintiff tendered the contract of employment referred to above together with -

(a) the Vision Australia Code of Professional Conduct Policy No. 1.0 dated November 2004;[229]

(b) the Community Employment, Training and Support Services Award 1999 (amendments up to 19 September 2006);[230]

(c) the Community Employment, Training and Support Services Award 1999 (amendments up to 2 October 2007);[231]

(d) Vision Australia Disciplinary Policy No. 12.0 dated July 2008;[232]

(e) Vision Australia Disciplinary Procedure No. 12.1 (said to relate to Disciplinary Policy No. 12.0) dated July 2008;[233]

(f) the Community Employment, Training and Support Services Award 1999 (amendments up to 1 October 2008);[234]

(g) the Vision Australia Unified Enterprise Agreement 2009;[235]

(h) the Vision Australia Grievance Mechanism Procedure No. 4.6 dated April 2011;[236] and

(i) the Vision EA (2013).[237]

299 The plaintiff also emphasised and relied upon -

(a) the stand down letter dated 18 May 2015,[238] which alleged that the plaintiff had breached certain policies and 'values' of the defendant and stated that the meeting for the plaintiff to respond to the allegations would be 'conducted in accordance with the due process clause of the Vision EA' and, consequently, attached a sequence of appendices including -

(i) clause 47.5 of the Vision EA (appendix 1); and

(ii) the Vision Australia Disciplinary Procedure effective 'April 2015' (appendix 2); and

(b) the termination letter dated 29 May 2015,[239] by which the plaintiff had been advised that the defendant considered him to have behaved in the manner described by the complainant (Ms Trch) and that was determined to be 'serious misconduct' as it, among other things, amounted to 'a failure to uphold Vision Australia's values'.

300 Notwithstanding the profusion of materials tendered in connection with this aspect of the claim, the focus was ultimately a little more confined.

301 In written submissions, the plaintiff contended as follows -

1. The Plaintiff submits that the 2013 Agreement [ie, the Vision EA]: Ex F, the 2015 Disciplinary Policy Ex Z, Appendix 2, the 2008 Disciplinary Policy: Ex S, and the 2008 Disciplinary Procedure (Ex R) forms part of the Plaintiff's contract of employment. The 2015 Disciplinary Policy committed the Defendant, like the Working With Us Policy in Nikolich, to a "fair, equitable and consistent approach to disciplinary action." The language is contractual repeatedly using the mandatory term "will" to reflect a clear intention.
2. The letter signed by the Plaintiff on 27 September 2006 accepting a contract of employment: Ex A, specifically provided:

(a) "Your engagement will be governed by the terms of this letter and the Community Employment, Training and Support Services Award 1999: Ex B, C, D, E and subsequently the Vision Australia Unified Enterprise Agreement 2013; and > > (b) "Other Conditions - in addition, employment conditions will be in accordance with regulatory requirements and Vision Australia Policies and Procedures. Breaches of the Policies and Procedures may result in disciplinary action".

3. It is submitted that each of the documents referred to were incorporated by express reference, or alternatively objectively read, formed part of the Plaintiff's contract of employment and were intended by the parties to have contractual effect: Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327 at [90]; Goldman Sachs JB Were Services Pty Ltd v Nikolich [2007] FCAFC 120; Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; (2000) 177 ALR 193. Each of the documents was either referred to or attached to the letter of 18 May 2015: Ex Z. Further, each is referred to either explicitly or inferentially in the termination letter of 29 May 2015: Ex DD. All witnesses called by the Defendant either explicitly or inferentially accepted the 2013 Agreement and the policies referred to as binding on the Plaintiff, irrespective of the fact that the Plaintiff was not engaged in his normal hours of work. It is also clear from the Defendant's answers to interrogatories: Ex KK that the policies and procedures to which reference has been made were regarded as having contractual force.[240]

302 It will be evident that the written submissions do not align perfectly with the relevant allegations in the plaintiff's pleading. In any event, the contentions above were really a stepping stone to a further distilled version of this aspect of the plaintiff's case, advanced in final address.[241] In that regard, senior counsel -

(a) drew attention to the reference in the terms of the contract of employment to the engagement being 'governed by the terms of this letter and the Community Employment Training and Support Services Award 1999';

(b) submitted that the Award specifically referred to in that clause had been 'supplanted' by the Vision EA, which includes a due process clause (clause 47.5);

(c) submitted that the due process clause is referred to in 'a number of policy documents of the defendant', in connection with which he referred particularly to the disciplinary policy effective July 2008;[242] and

(d) submitted that the due process clause in the Vision EA 'feeds directly into' the actions taken by the defendant in respect of the plaintiff, shown by -

(i) the stand down letter (which, as I have noted, refers directly to clause 47.5 of the Vision EA and also attaches it as appendix 2); and

(ii) the termination letter.

303 In summary, senior counsel for the plaintiff submitted as follows -

So our submission is that the 2013 agreement [ie, the Vision EA] is a centrepiece of the foundations upon which the disciplinary process that was invoked with respect to Mr Elisha was then implemented against him, and that that finding, we say, is inescapable having regard to the repeated references to due process and to the actual document itself in the employer's correspondence to the employee.[243]

(a) confirmed that the 'nub of the argument' was that clause 47.5 of the Vision EA had to be part of the contract of employment because it was purported to be used in connection with its termination;[244] and

(b) described this part of the plaintiff's case as based in the reasoning of the Full Federal Court in Goldman Sachs JB Were Services Pty Ltd v Nikolich ('Nikolich').[245]

305 For its part, in lengthy and detailed written submissions, the defendant resisted every element of any argument to the effect that the documents relied upon by the plaintiff were either incorporated into the contract of employment or relevant to any implied term.

306 In respect of the various documents relied upon, I have earlier referred to clause 47.5 of the Vision EA, which, for present purposes, provides as follows -

47.5 Due Process

...

47.5.2 Due process will commence with the employer advising the employee of:

a) The employer's concerns with the employee's conduct or performance;

b) The time, date and place of the first due process meeting;

1. The employee's right to be accompanied by a nominee of the employee's choice at all due process meetings;

d) The employee's right to terminate the employment should due process not resolve the employer's concerns.

47.5.3 Due process meetings will:

a) Include discussion of the employer's concerns with the employee's conduct or performance;

b) Give the employee an opportunity to respond to the employer's concerns;

c) Include discussions of any counselling or assistance, where appropriate, available to the employee;

d) Include documentation, where appropriate;

e) Set periods of review, as appropriate.

47.5.4 If, following due process, the employee's decision is to terminate the employment of the employee, then the employer must give notice in accordance with subclause 47.2.1.

... [246]

307 The Vision Australia Disciplinary Policy dated July 2008 relevantly states -

PRINCIPLES

• The Disciplinary Policy and Procedures are clear, concise, conform to all legislative and employment agreement requirements and will be followed at all times in matters of discipline and/or dismissal.
• All staff members will have access to the Disciplinary Policy and Procedures.
• All disciplinary action will be fair, equitable, consistent and non-discriminatory, and comply with legislative requirements.
• Staff have the right to be accompanied by a support person throughout the formal process.
• Staff will have the opportunity to respond to the complaint made against them.
• Staff will be given a fair opportunity to improve their performance/conduct to a satisfactory level.
• Allegations, response to the allegations and actions will be recorded in writing as part of the process. Staff will receive a copy of the warning in their preferred format.
• All staff must genuinely engage with, and treat seriously, any matter of performance raised by a relevant supervisor or other senior person.
• Due process will be applied at all times and termination will only occur when reasonable efforts to improve the employee's performance to the Organisation's required standard have failed.[247]

308 That policy is said to have been prepared by the 'Vision Australia Human Resources Team' and identifies a review date of 'July 2013'. No more recent disciplinary policy was tendered into evidence.

309 As I have noted, the plaintiff also tendered the Vision Australia Disciplinary Procedure dated July 2008.[248] It states that it 'is to be read in conjunction with the Disciplinary Policy'. It states certain 'Guidelines' as well as a four stage 'Disciplinary Procedure'. It contains another section entitled 'Summary or Instant Dismissal' as well as another entitled 'Disciplinary Process Checklist'.

310 In the latter connection, the second step identified in the checklist contains reference to 'Vision Australia's Disciplinary Policy and Procedures', and the associated check is stated in the following terms -

Is potential disciplinary action consistent with policy or procedure and fair under the circumstances?

311 Several further steps are thereafter identified and the associated checks stated. The step to which I have referred precedes formal warning or interview of the employee.

312 Either the penultimate or final step is identified as being 'Stand- Down/Termination/dismissal' in respect of which the checklist seems to say 'evaluate all facts'. The associated checks are stated as follows -

Is there a valid reason for termination and what is the appropriate category for dismissal?

Are there harsh, unjust or unreasonable grounds for termination?

What are the likely repercussions of dismissal action?

Terminations should only occur after discussions with HR and approval from relevant General Manager and CEO.

313 Like the associated policy, the procedure is said to have been prepared by the 'Vision Australia Human Resources Team' and identifies a review date of 'July 2013'.

314 The more recent Vision Australia Disciplinary Procedure 'effective April 2015' provides relevantly as follows -

Vision Australia recognises that during the employment relationship, there may be occasions where an employee's behaviour or work performance requires disciplinary action.

Vision Australia is committed to communicating the expectations and standards regarding workplace behaviour and work performance, and seeks to emphasise the corrective and educative role of disciplinary action.

Vision Australia is committed to a fair, equitable and consistent approach to disciplinary action, and to act in accordance with this procedure, as well as all relevant industrial instruments and contract provisions, for all employees who have completed the minimum employment period as defined in the Fair Work Act 2009.

When is Disciplinary Action appropriate?

Disciplinary action may occur where there is a concern with respect to an employee's performance or conduct in the workplace.

Examples of behaviour that may lead to disciplinary action include, but are not limited to, issues of under performance, lack of punctuality, failure to adhere to the policies of Vision Australia, failure to model Vision Australia's values at all times, and failure to adhere to lawful and reasonable directions.

Serious Misconduct

Disciplinary action should occur in cases of serious misconduct.

Serious misconduct is defined in accordance with the Fair Work Act 2009 and includes:

• Willful, or deliberate, behaviour by an employee that is inconsistent with the continuation of the contract of employment; and

• Conduct that causes imminent, and serious, risk to the health, or safety, of a person, or to the reputation, viability or profitability of the employer.

Depending on the facts, summary dismissal may be justified in situations such as, but not limited to:

• The employee committing theft, fraud or assault (for example, stealing the property of the employer or another employee, or intentional abuse of a customer or other employee).

• The employee being affected by drugs or alcohol while at work.

• The employee refusing to carry out a lawful and reasonable instruction that is consistent with the employee's contract of employment.

• Persistent failure to comply with occupational health and safety policies.

Disciplinary Procedure

1. Where there is a concern with an employee's performance or conduct, the first step, if appropriate, will be an informal counselling session between the employee and their immediate manager. The employee will be advised of the concern, and an agreed strategy for dealing with the concern will be negotiated. The situation will be reviewed within an agreed timeframe.

2. Where informal counselling is not appropriate or where the concern is of a more serious nature, a formal disciplinary meeting will occur. Prior to the meeting, the employee will be provided with a letter containing a written outline of the allegations. The letter will request that the employee attend a meeting to respond to the allegations, and indicate that the employee may have a support person present. The letter will also indicate that disciplinary action up to and including termination may occur if the response is not satisfactory.

3. The meeting will be attended by up to two management representatives (one of whom may be a legal or industrial representative of Vision Australia). One of these parties will act as note-taker to record events. At the meeting, a discussion will occur and the employee will be given an opportunity to respond to the allegations.

4. Following the meeting, Vision Australia will make a decision as to whether the employee should be issued with a formal written warning, a final warning or termination of employment, or whether other appropriate action should be taken (i.e training), or whether no action should be taken at all.

5. Vision Australia will advise the employee of their decision. A written record of the decision will [be] placed on the employee's file. If a formal written warning is given, the employee will be informed that any further instance of poor performance or unacceptable behaviour/conduct in the workplace may result in further disciplinary action up to, and including, termination of employment.

Investigations

In some cases, it may be necessary for Vision Australia (at any time) to arrange for an investigation into the allegations. The investigation will be conducted in accordance with the principles of natural justice. During an investigation an employee may be placed on leave with pay if necessary in the circumstances.[249]

315 Notwithstanding all of the above, in answers to interrogatories it was deposed on behalf of the defendant that the various 'steps' taken in respect of the plaintiff were -

in compliance with the April 2015 Disciplinary Procedure and the Due Process clause of the Vision Australia Unified Enterprise Agreement 2013.[250]

316 In particular, it was deposed that 'in line with the April 2015 Disciplinary Procedure' the plaintiff was 'provided with an opportunity to respond to the allegations' made against him at the meeting on 26 May 2015.

317 As to that process generally, and any suggestion that the defendant had acted upon the 'July 2008 Disciplinary Procedure', it was deposed that -

By the time of the disciplinary process in May 2015 the Disciplinary Procedure dated July 2008 had been superseded. The applicable Disciplinary Procedure was that which formed Appendix 2 to the letter to the Plaintiff dated 18 May 2015. I say further that given the seriousness of the allegations made against the Plaintiff, a decision had been made to skip the informal counselling session step of the April 2015 Disciplinary Procedure and proceed straight to steps 2-5. Ultimately on the facts as found following the interview with Ms Trch and after allowing the Plaintiff fair opportunity to respond to the allegations, it was considered that the allegations were made out and termination of employment was the appropriate course of action.

I note, in any event, that the July 2008 Disciplinary Procedure also contains procedures for Summary Dismissal from employment. I note that the procedure set forth in that document under the heading 'Summary or Instant Dismissal' was in fact followed in this case and does not differ greatly from the procedure in the April 2015 document.

The Disciplinary Procedure Steps 1 to 4 in the 2008 document would not have applied by reason of the initial assessment that what was being dealt with was "serious misconduct", in much the same way as the informal counselling approach that formed step 1 of the April 2015 Disciplinary Procedure also did not apply because of the more serious nature of the allegations.[251]

318 In the context described, both parties referred to the recent decision of the Court of Appeal in Lloyd v Healthscope Operations Pty Ltd ('Lloyd'),[252] in which Beach, Osborn JJA and Forbes AJA confirmed the rejection of a submission to the effect that a disciplinary procedures document (and some other such documents) had been 'contractual documents containing express or implied terms' in or in respect of the appellant's contract of employment.[253]

319 In that regard, their Honours referred to relevant authority,[254] and described the question of whether relevant parts of the disciplinary procedures document were contractually binding as turning upon the answers to the following three questions -

(a) first, whether the document was incorporated into the contract by express reference;

(b) secondly, if the document was not incorporated by express reference, whether it could be objectively concluded that the parties intended it to form part of the contract; and

(c) thirdly, if the document was part of the contract, whether it could be objectively concluded that the parties intended the relevant part of the document to have contractual effect.[255]

320 In respect of the disciplinary procedures document there under consideration, their Honours stated -

1. Having examined the evidence led at trial for ourselves, including the Disciplinary Procedures document and its terms, we agree with the judge in his conclusion that the Disciplinary Procedures document was not contractual. It was not expressly incorporated. Specifically, looked at objectively, the terms of the document do not suggest that the parts of it relied upon by the plaintiff were intended to have contractual effect. Much of the document (including critical parts of it) is descriptive. It uses the language of discretion. It refers to what should occur, rather than what must occur. In places, it refers to what usually occurs.
2. Our conclusion that the Disciplinary Procedures document did not have contractual effect is fatal to the plaintiff's contention that the parts of the document she relied upon were legally binding on the defendant. For the sake of completeness, however, we should also say that the expression 'shall be employed subject to the policies and by-laws of the Hospital' in cl 14 of the October 1999 contract is ambiguous as to whether it actually imposed any contractual obligation on the defendant in respect of those policies and by-laws. The language in cl 14 is to be contrasted with the language in cl 13, which provided that the plaintiff 'shall follow safe work practices ...'. That said, having regard to our conclusion that the Disciplinary Procedures document did not have contractual effect, it is not necessary for us to express a final view on the proper construction of cl 14 of the October 1999 contract.

321 In light of the above, it was presently common ground that the question of whether any, and if so which, of the documents relied upon by the plaintiff were incorporated into the contract of employment was to be guided by an objective consideration of the intentions of the parties in light of the text, context, object and circumstances surrounding the making of the contract.[256] In that regard, the words of the contract are plainly a very important starting point, as are the terms of the documents sought to be relied upon as incorporated.

322 As I have noted, the plaintiff gave broad emphasis to the decisions of the Full Federal Court in McCormick v Riverwood International (Aust) Pty Ltd ('Riverwood')[257] and Nikolich.

323 Riverwood concerned whether the written contract of employment between the appellant and respondent incorporated a redundancy policy later inserted into a Human Resources Policies and Procedures Manual. In that connection, the contract relevantly provided -

You agree to abide by all the company policies and practices currently in place, any alterations made to them, and any new ones introduced.[258]

324 The appellant terminated the respondent's employment, but did not make payment pursuant to the redundancy policy. The trial judge determined that the redundancy policy had been incorporated and the contract therefore breached.

325 The primary argument advanced on behalf of the appellant in Riverwood seems to have been that the respondent had been obliged to 'abide' by the policies and procedures, but not the appellant. Such an argument has since been again rejected and there described as defying 'both logic and common sense'.[259]

326 In any event, the decision at trial was upheld by majority on appeal. In the appeal, the clause to which I have referred was referred to as 'the policy clause'.

327 In that connection, North J noted that many provisions of the manual were 'expressed in the language of obligation' and that the expression 'abide by' appearing in the policy clause had a 'duality of application', namely 'to accept and to continue to observe [an agreement]'.[260] His Honour considered the policy clause to reflect 'the parties' intention to offer and accept mutual obligations in accordance with the provisions of the manual'.[261] In that, his Honour rejected a submission that the fact that the contents of the manual could change 'rendered the contents of the manual an unacceptable guide' to the meaning of the policy clause.[262]

328 Mansfield J also considered no error to have been made by the trial judge. His Honour considered the policy clause to have given effect to the presumed intention of the parties that 'the respondent would receive the benefits of the policies in the manual as they applied to him, including under the redundancy agreement'. His Honour also rejected the submission that the fact that the appellant might change its policies or introduce new policies signified that 'it did not intend to be contractually bound to the respondent to comply with its policies from time to time'.[263]

329 A few years later, Nikolich concerned a claim for damages arising from psychiatric injury.[264] The respondent relied on a lengthy manual entitled 'Working With Us', which had been provided to him at the time at which he had signed the contract of employment.

330 The trial judge found parts of that manual to have been incorporated into the written contract of employment. His Honour found that the incorporated terms had been breached, rejected the submission that damages were too remote and assessed both general damages and damages for loss of earning capacity.[265]

331 The decision at trial was upheld by majority on appeal. In that regard, the respondent accepted in argument that some sections of the manual formed part of the contract of employment, albeit not those parts in issue on the appeal. It followed that the relevant question was whether the particular parts relied upon were contractual. The appellant contended that the parts were, in effect, 'merely aspirational'.

332 Black CJ considered that 'the language used, taken in the context as a whole, points to the statement embodying a contractual obligation'. Accordingly, his Honour concluded that the trial judge had been correct.[266] That said, his Honour considered other aspects of the manual to be descriptive in nature and 'not promissory'.[267]

333 Black CJ rejected contentions of the appellant to the effect that the trial judge had erred in respect of the issues of breach, causation and remoteness of damage. In respect of the latter two issues, Marshall J expressly agreed.[268]

334 As to the issue of incorporation, Marshall J considered the conclusion of the trial judge to have been correct. In particular, that the appellant could vary the terms of the manual 'from time to time' was not considered to mean that it did not intend to be bound by 'the terms of the document in whatever form it existed' during the respondent's employment. In that connection, his Honour referred to the reasoning of Mansfield J in Riverwood.[269]

335 His Honour also rejected the submission that the parts relied upon in the manual were 'too vague and general' to be considered contractual. In that, his Honour adopted the observation of the trial judge that the 'logical consequence' of such a submission is that the manual is 'misleading' or a 'cruel hoax'.[270]

336 I should perhaps note that while his Honour was in dissent as to parts of the argument in respect of incorporation and overall as to breach, Jessup J addressed the submission that the fact that the appellant had reserved to itself the right to vary, change or cancel the information stated in the manual was 'fundamentally inconsistent with the notion that a contract existed between them'. His Honour stated -

However, the respondent's case was not that the particular provisions of the WWU [ie, the manual] as they existed at the time of the offer of employment were incorporated into his contract of employment; rather, the term alleged was that the appellant would not treat him other than in accordance with its policies as amended from time to time, including those set out in WWU. This way of putting things effectively sidestepped the appellant's submission. The prospect of amendment from time to time was not only permitted by the term which the respondent alleged: it was specifically contemplated.[271]

337 Further, and in respect of whether what was referred to as the 'health and safety statement' in the manual was promissory and therefore contractual, his Honour referred, among other things, to the language of the statement. In that regard, his Honour concluded -

Finally, I take account also of the ostensibly promissory nature of the language used in the opening words of the health and safety statement, and elsewhere therein. It is said that the appellant "will take every practicable step"; that the appellant "has a duty to provide and maintain"; and that the appellant "will ensure the effective implementation of health and safety procedures". Although, in a document such as WWU, grammatical indications such as these would not, of their own, be sufficient to convey contractual intent, in context, and together with the other considerations to which I have referred above, they provide some confirmation of the conclusion which I would otherwise be inclined to reach, namely, that the health and safety statement should be regarded as contractual.[272]

338 Notwithstanding the above, as I have indicated, his Honour ultimately concluded that the respondent had not established that the appellant's contractual promise had been breached.[273]

339 The written submissions of the defendant referred to the more recent decision of the Full Federal Court in Romero v Farstad Shipping (Indian Pacific) Pty Ltd ('Romero'),[274] which, among other things, referred to and discussed the earlier decisions in Riverwood and Nikolich.

340 In Romero, the appellant contended that her contract of employment incorporated a workplace harassment and discrimination policy. She alleged that a complaint she had made had been managed in breach of the policy. Her claim failed at trial.

341 The appellant's letter of engagement had stated -

In addition, all Farstad Shipping Policies are to be observed at all times.

342 The evidence was that the appellant had been given a copy of the policy. However, the respondent contended that the relevant parts of the policy were merely 'directive', in the sense that they constituted 'direction to employees' and that the words 'shall' and 'will', where there appearing, amounted to 'a statement of intention, rather than mandating a particular way to do things'.[275]

343 Allsop CJ, Rares and McKerracher JJ rejected the various arguments of the respondent and accepted that the relevant parts of the policy formed part of the contract (and had been breached). In that connection, their Honours stated as follows -

1. In situations where clear language is used and sufficient emphasis is placed upon the need for compliance (implicitly by both parties) with the terms of a company policy, then especially where that goes to fundamental conditions of employment, such as payment and the method of compliance with external statutory obligations, objectively viewed, the parties would be expected to regard such terms as contractually binding.
2. The language used in this instance, taking the Policy as a whole, makes it clear that there is an expectation by the company that there will be mutual obligations. In return for the employee complying with the terms of the Policy, the employer gives a responsive assurance that complaints of non-compliance by other employees will be treated in a certain way.
3. While counsel for Farstad suggested that these elements of the Policy were merely directive, that is, directing the employee as to how to go about making a complaint, on proper analysis they are more in the nature of a bargain with an exchange of undertakings and assurances or promises.
4. It is true, indeed, that there are aspects of the Policy which are merely aspirational. However, the specific obligations considered in this case were clearly ascertainable and quite capable of precise identification. There is thus no uncertainty or vagueness as to what the relevant terms of the Policy mean. Many enforceable contracts contain provisions that can be described as aspirational. These often include recitals or other terms, that are not of themselves individual expressions of discrete rights or obligations, but record, as part of the contractual terms, agreed positions that are available to inform the proper construction of the contract as a whole. Recitals in a contract or deed often provide an aid to the elucidation of the meaning of particular operative terms in a contract, albeit that the recitals themselves do not contain any promises or obligations that are capable of being enforced by law. However, the precise effect of every provision, including a recital, in a contract or deed will depend on the circumstances of the individual case.
5. One argument against policies being incorporated is the power an employer may have to unilaterally vary a policy. It is clear from cases such as Riverwood that this will not necessarily indicate that a company's policy is not part of the contract. Of course, it would be more precise and, therefore, more certain if the wording in a contract of employment referred, not only to any policy currently in place, but also policies as modified from time-to-time. This would also leave open other debates as to the nature of the alteration: see the discussion by North J in Riverwood (at [111]). The topic is academic in the present situation because it is clear that the terms of the Policy, with which Ms Romero has concern, were those applicable at the time she was employed.
6. It is relevant that the Policy was the subject of an education program at, or contemporaneously with, the offer of employment and was provided to the employee and that the employee was required to sign the Policy. It is also relevant that the benefit provided is consistent with the nature of the benefit which would be expected to be provided by statute and, therefore, a benefit ordinarily conferred in employment contracts. Further, it is relevant that there was regular reinforcement of policies on an ongoing basis. None of those matters, taken alone, may be decisive, but the cumulative effect of those features of this relationship point towards the incorporation of the Policy into the contract of employment.
7. The actual employment context is also particularly pertinent. There would be features of the activity involved in Ms Romero's employment which could readily lead to particularly problematic situations if bullying and discrimination were not precluded. In the context of operating ships, a calm environment is of particular importance, from a safety perspective, not only for the particular employee, but for many who may be affected by departure from such standards.
8. The Policy in this instance was part of the employment contract. The wording of the letter of offer taken with the importance of the Policy terms, the education of employees to reinforce the terms of the Policy are all factors leading to that conclusion. While some parts of the Policy may have been aspirational and some parts directive, Farstad's obligations in relation to dealing with serious complaints of sex discrimination and bullying were contractual promises given in exchange for employees being obliged to comply with the behavioural requirements imposed on employees by the Policy.

(a) noted the clear language used, together with the emphasis upon compliance;

(b) considered that the language involved was, on proper analysis, in the nature of a bargain;

(c) noted that while parts of the policies were 'merely aspirational', the particular obligations under consideration were 'clearly ascertainable and quite capable of precise identification';

(d) noted further that 'many enforceable contracts contain provisions that can be described as aspirational' and that 'the precise effect of every provision, including a recital, in a contract or deed will depend on the circumstances of the individual case';

(e) stated that the fact that the employer has a power unilaterally to vary a policy 'will not necessarily indicate that a company's policy is not part of the contract'; and

(f) concluded that while parts of the policy there under consideration may have been aspirational and others directive, the obligations of the respondent in respect of complaints of sex discrimination and bullying were 'contractual promises given in exchange for employees being obliged to comply with the behavioural requirements imposed on employees'.

345 The cases to which I have referred have concerned allegations that a policy or procedure has been incorporated into the particular contract of employment. There are, however, also cases in which it has been alleged that the contract of employment incorporates the terms of an industrial award or agreement. Such an allegation is, of course, made in the present case.

346 The particular difficulty in respect of the incorporation of such instruments is that they have a distinct function independent of any contract of employment. Thus, in Byrne v Australian Airlines Ltd,[276] which concerned the cognate contention that the terms of an industrial award were implied into a contract of employment independent of the intentions of the parties, Brennan CJ, Dawson and Toohey JJ stated -

A right to the payment of award rates is imported by statute into the employment relationship, which is contractual in origin, and, express promise apart, it is only in that sense that it can be said that award rates are imported into the contract of employment. The award regulates what would otherwise be governed by the contract. But award rates are imported as a statutory right imposing a statutory obligation to pay them. The importation of the statutory right into the employment relationship does not change the character of the right. As Latham CJ points out in his judgment in Amalgamated Collieries of WA Ltd v True (60), the legal relations between the parties are in that situation determined in part by the contract and in part by the award. And as the judgment of the Privy Council in that case suggests, a provision in an award may also be made a term of the contract by agreement between the parties, but that is only to emphasise the distinction between an obligation imported by statute and one arising by agreement.

...

In a system of industrial regulation where some, but not all, of the incidents of an employment relationship are determined by award, it is plainly unnecessary that the contract of employment should provide for those matters already covered by the award.[277]

347 That difficulty, which is considered to apply equally to enterprise agreements made pursuant to the provisions of the Fair Work Act,[278] tends to arise in addition to many of the problems of incorporation already discussed.

348 Thus, in Automotive, Food, Metals, Engineering, Printing, and Kindred Industries Union v Mechanical Engineering Services Pty Ltd ('Mechanical Engineering'),[279] in which employees had sought to recover redundancy entitlements based in an award and certified agreement said to have been incorporated into contracts of employment, Finkelstein J stated -

1. The argument that the certified agreement and the award were incorporated into the contract cannot succeed. MES' offer was to employ a worker "in the same position and on the same terms and conditions" as the worker enjoyed with Skilled. The evidence does not suggest that those terms and conditions incorporated the certified agreement and the award.
2. It was said that the letter of offer, by stating that the certified agreement and the award "will continue to govern [all employees'] employment with MES during and after the transmission of the Workshops (sic) business to MES", had the effect of incorporating the certified agreement and the award. I do not agree. First, the language of the sentence is not contractual, that is, it is not couched in the terms of a promise. Secondly, on a fair reading the sentence does no more than record facts. The effect of s 170MB of the pre-amendment Workplace Relations Act was that the certified agreement would continue to govern the employees' employment with MES as a statutory instrument. The effect of s 149(1)(d) was that the award would continue to apply.
3. To the extent that one can look to the surrounding circumstances to determine the objective intention of the parties as regards the incorporation of the certified agreement and the award into the employment contracts, the result is the same. While the parties intended the certified agreement and the award to apply, it did so by operation of law. There was, therefore, no need to incorporate those instruments into the contract. Without that need there is no reason to assume that the parties intended to incorporate them as part of their contract.[280]

349 More recently, however, in Gramotnev v Queensland University of Technology ('Gramotnev'),[281] the Queensland Court of Appeal considered an appeal from the rejection of a claim that the appellant's letter of appointment incorporated certain enterprise agreements and policy documents (and which had been breached).

350 Jackson J, with whom Margaret McMurdo P and Holmes JA agreed, gave careful consideration to the relevant letter of appointment and circumstances, including the terms of the enterprise bargaining agreements and the policies and procedures on which the appellant relied. I note that the appellant appeared in person.

351 His Honour identified various parts of the enterprise bargaining agreements as 'aspirational'. However, his Honour also identified other clauses that might operate as contractual terms. His Honour then considered the relevant reasoning of the trial judge, who had emphasised the independent statutory force given to enterprise bargaining agreements, and stated -

1. I cannot agree with two of the steps in this reasoning. First, in my view, once it is accepted that the parties may contract on the terms of an enterprise bargaining agreement, even though that agreement has statutory operation outside any contract, it is difficult to reason that the language they employ should be construed on the footing that a hypothetical bystander would be aware that there is no need for express incorporation of the terms. If the language employed is not the language of the contractual agreement, the relevant statutory operation of an enterprise bargaining agreement may explain reference to it in the documents given to a new employee. But I do not consider that the statutory significance is of any greater assistance in construing the language that is used.
2. In particular, I do not think the statutory significance of an enterprise bargaining agreement should be elevated so that whether the terms of an enterprise bargaining agreement are terms of a contract of employment is tested by what is needed or what is necessary. That is not a conventional approach to the construction of express language contained in a letter of offer that expressly provides for acceptance by signature and return of an enclosed copy, so as to make a contract on the offered terms.
3. Second, in my view, it is a bridge too far to attribute to the appellant, as a contracting party, any actual awareness of the statutory operation of an enterprise bargaining agreement. Nor is it obvious that a reasonable person in the appellant's position should be presumed, for the purposes of construing the contract, to be aware of the existence of the statutory remedies to enforce an enterprise bargaining agreement.

352 His Honour later concluded that a reasonable person in the position of the appellant or respondent would be aware that not all provisions of the enterprise bargaining agreement could operate as terms or conditions of the contract and it followed that, properly construed, the letter of appointment had not made all terms of the relevant agreements terms of the contract of employment.[282]

353 His Honour then turned to the various policies and procedures, in respect of most of which he considered the trial judge to have made no error in rejecting any contention that they were contractual. That said, in respect of a staff disciplinary policy that prescribed a procedure in the event of the making of an allegation of misconduct or serious misconduct, his Honour considered the trial judge to have correctly dealt with one aspect of the argument, but said further -

However, that conclusion does not deal with the appellant's submission that the respondent is contractually obliged to follow the policy where allegations of bullying and harassment are made by a staff member. As to that, the primary Judge referred to some of the terms of the policy as aspirational. That may be accepted. However, the policy expressly provides for detailed procedures to manage allegations of misconduct or serious misconduct against senior staff in four phases: first, consideration of the allegation by the Vice-Chancellor and notification of the staff member; second, action by the Vice-Chancellor as to how to proceed, by taking no action, counselling or censuring the staff member, referring the matter to a Misconduct Investigation Committee or in some cases terminating employment without referral; third, where the allegations are referred to a Misconduct Investigation Committee proceedings before that committee; and fourth, following a report by a Misconduct Investigation Committee, decision on the action to be taken by the Vice-Chancellor. In my view, there is no reason why those procedures could not operate as contractual terms.[283]

354 His Honour considered the procedures to provide for how an outcome would be reached, and determined that the fact that the Vice-Chancellor of the University may make the decision did not mean 'that contractual remedies are not contemplated'. In that regard, his Honour stated -

The primary Judge found that the policy is not contractual in nature and does not form a term of the contract. I cannot agree to the extent that the policy operates as a promise by the respondent to the appellant that an allegation of misconduct or serious misconduct against him will be dealt with according to the procedures of the policy.[284]

355 That said, his Honour ultimately considered there to have been no material error because the appellant did not claim that the respondent failed to follow the policy in dismissing him.

356 In light of the above, the presently relevant principles or considerations may be summarised as follows -

(a) whether or not the Vision EA or any of the policies or procedures upon which the plaintiff relies were incorporated into his contract of employment depends upon the parties' intentions objectively ascertained;

(b) in that regard, the starting point may be said to be the language of the contract, but that must fall to be considered in context, including with reference to the object or purpose of the contract and the surrounding circumstances known to the parties;

(c) the parties may be bound by a meaning reasonably inferred in the circumstances;

(d) the language of the contract is important, especially if it is clear, although often, in such cases, the contract concerned is loosely drafted;

(e) in respect of whether a policy or other document is to be viewed as contractual, where the language is clear, compliance is emphasised and the consideration goes to a fundamental condition of employment, the parties would be expected to regard such terms as contractually binding;

(f) a consideration may be whether the contract and external documents present in the nature of a bargain;

(g) special considerations of context may affect whether an industrial agreement or instrument may be seen as incorporated into the contract;

(h) external documents may include parts of an 'aspirational' or 'directive' nature, but nonetheless may contain terms properly characterised as contractual or capable of being contractual;

(i) later created documents can be contractual - much depends upon the language of the contract; and

(j) in that regard, the fact that the employer has a power to alter policies and procedures may not necessarily indicate that that such documents are either not contractual or do not contain contractual terms.

357 In light of the above, I should start with the object, terms and context of the contract of employment to which I have already referred.

358 Having regard to the manner in which the case was conducted, relatively little in the way of evidence was adduced concerning the making of the contract of employment in about September 2006. None of the witnesses called by the defendant seem to have been in a position to give such evidence, and the manager that signed the contract of employment on behalf of the defendant was not called.

359 The plaintiff's evidence concerning the making of the contract was relatively sketchy, which is not surprising and certainly not intended as a criticism.[285] He signed the contract. The contract referred to the documents supplied with it. The documents there listed did not include any award, enterprise agreement, policies or procedures.[286] I could not conclude that any of those documents were supplied to the plaintiff or signed by him at the time at which the contract was made.

360 The plaintiff said that he later voted on the enterprise bargaining agreement or agreements.[287] He also said that the policies were available on the defendant's intranet.[288] He mentioned the disciplinary policy and the grievance mechanism. He understood that he was bound by the defendant's policies.[289] In that connection, it was evident that when relevant, he was later provided with a copy of the applicable disciplinary policy, including as an appendix to the stand down letter.[290]

361 The plaintiff was not sure whether he had been personally 'delivered' each new policy, although he did not think so. As he said -

I'm not sure. I was not worried about at that time the details of the contract, I was just doing my job.[291]

362 As to whether the plaintiff had been required to sign a document acknowledging receipt of any policy, he replied -

Um, no, I don't think I needed to sign it, I think it was just - it was just in the contract.[292]

363 I should say that there was no evidence to the effect that the defendant had a system for providing policies or procedures to the employees of the defendant for signing or specific acknowledgement.

364 It was sought to be suggested to the plaintiff that he had signed variations to the contract of employment when his pay and classification had subsequently been altered. The plaintiff variously answered those questions 'perhaps, I don't recall', 'yes', and 'sounds familiar'.[293] In respect of the related questions directed to policies he said 'I don't remember' and 'I'm not sure, sorry'.[294]

365 I did not have a sense that the plaintiff actually remembered signing up to such variations, and unlike other such documents tendered,[295] no signed (or unsigned) variations were produced and sought to be tendered into evidence.

(a) I do not accept that the plaintiff actually ever signed any such variations;

(b) I accept that at all material times, including when the contract of employment was made, the applicable policies and procedures of the defendant were available on the defendant's intranet;

(c) otherwise, such policies and procedures seem to have been provided or identified when specifically relevant and required - which is what occurred when the plaintiff was the subject of specific process in March 2008, February 2010 and, later, in May 2015.[296]

367 In that context, the contract of employment specifically identified that the plaintiff was employed as an adaptive technology consultant, and was accompanied by a position description.

368 As I have earlier noted, it was essentially common ground that the nature of the plaintiff's position required him to interact with the vision impaired in their homes and workplaces and, from time to time, in regional Victoria and interstate.

369 In that sense, the object of the contract of employment was to regulate the employment relationship between the plaintiff and the defendant, specifically in connection with the position which he was employed to hold.

370 Further, in respect of such a position, it would be reasonable to contemplate that the defendant would have policies bearing upon 'conduct' or 'values' as well as procedures for counselling, warning and dismissal if the plaintiff were not to behave in accordance with such values.

371 In that regard, of course, the contract of employment assumed that such documents did and would exist, as it referred to them, in terms, as the 'Vision Australia Policies and Procedures'.

372 Further, the plaintiff tendered into evidence a 'code of professional conduct policy' which seems to have originally been related to a 'governance policy' and is dated November 2004.[297] The document also bears the date 'June 2008'. However, in light of the form of the document, and the form of the contract of employment, I would infer that there was a form of 'code of professional conduct policy' in existence when the plaintiff's contract of employment was made in about September 2006.

373 The 'code of professional conduct policy' to which I have referred states, among other things, that -

In fulfilling our duties, we shall maintain the highest ethical standards and will act in an honest, diligent and professional manner.

374 In respect of non-compliance, the policy states -

Non-compliance with this code may result in counselling and/or disciplinary measures including termination of employment, depending upon the gravity of the breach. Refer to Counselling, Warning, Dismissal Policy and Procedures and the relevant sections of the Staff Manual.

375 In short, the form of the policy suggests that at the time at which the plaintiff's contract of employment was made, employees of the defendant were required to act in accordance with certain specified values or behavioural norms and may face disciplinary action in the event of a failure to do so, but that written policies and procedures would regulate the conduct of any such disciplinary action.

376 No witness suggested that such a position was not in existence in September 2006 and all relevant witnesses plainly considered the plaintiff to have been bound by the defendant's policies and procedures applicable from time to time (including the plaintiff himself).

377 Indeed, several of the defendant's witnesses emphasised the 'culture' of the defendant, the vulnerability of the clients and, consequently, the behavioural expectations and requirements inherent in a position of the kind assumed and held by the plaintiff.[298]

378 In that connection, the defendant came to submit that -

Vision Australia has committed itself to high standards of conduct, commensurate with the level of trust it is asking its vulnerable clients to hold in them.[299]

379 The defendant referred to its policies 'laying out the high standards expected of its staff', including the 'code of professional conduct policy', and submitted that it had been 'made plain' that breaches of the documents 'would be treated seriously'.[300]

380 In thereafter submitting that the circumstances pertaining to the plaintiff 'virtually mandated' a finding of 'serious misconduct' (which submission it will be evident I do not accept), the defendant stated -

... the nature of the employment both from an organisational perspective and having specific regard to the plaintiff's specific role was one where a very high degree of trust and confidence was necessary. Trust and confidence was not only necessary as an abstract concept. Vision Australia had to have absolute trust and confidence in the plaintiff's capacity and willingness to live the Vision Australia values in one-on-one, unsupervised, settings, with vulnerable clients. In this respect, the nature, extent, significance, and context of the default struck at the very heart of the trust and confidence Vision Australia needed to have in the plaintiff.[301]

381 None of that to which I have referred tended to suggest that the substance of the behavioural expectations and requirements of the plaintiff in connection with his position or, the reasonable expectations in respect of the applicable disciplinary procedures in the event of any contention that such a requirement had been breached, was qualitatively any different at any time between the making of the contract of employment in about September 2006 and the procedures involving the plaintiff in May 2015.

382 In the circumstances, it is not surprising that it was not suggested in submissions that no such expectations were objectively held by the contracting parties at the time at which the plaintiff's contract of employment was made.

383 Indeed, I consider it to be reasonable to conclude that the expectations to which I have referred were held by the plaintiff and defendant at the time the contract of employment was made in September 2006 and at all relevant points thereafter.

384 As I have earlier noted, the 'conditions of employment' are identified in the contract of employment as follows -

Your engagement will be governed by the terms of this letter and the Community Employment, Training and Support Services Award 1999.[302]

385 The Community Employment, Training and Support Services Award 1999 is later mentioned in connection with the plaintiff's classification and his base salary.

386 In context, the contract necessarily speaks to the future in that it identifies what the conditions of the engagement 'will be'. That said, it plainly refers to the then applicable award, classification and salary.

387 The later awards and Vision Australia enterprise agreements tendered in evidence suggest that those circumstances changed - which is hardly surprising, and I would tend to think must have been objectively contemplated at the time at which the contract was made. As I have noted, the written terms of the contract were not specifically amended to reflect those changes.

388 I note that the clause to which I have referred uses the word 'governed', which might suggest that it should be taken to mean that the Award was not specifically incorporated into the contract of employment.[303] However, in the same breath, the clause refers to the engagement being 'governed' by the 'terms of the letter'.

389 In my view, the terms of the letter are plainly proposed and would be taken objectively to have been contractual. It follows that, in the present instance, no special significance should be attached to the use of the word 'governed' as opposed to any other word that would signify that the engagement would be regulated by the terms stated in the letter as well as the applicable award.

390 That said, as I have noted, at least the pay and classification the subject of the then applicable award seem to have been contemplated as being contractual. It follows that, like Gramotnev, the contract of employment seems to have contemplated that at least parts of the relevant award 'will be' contractual.

391 The conditions of the engagement were, of course, later elaborated as follows -

In addition, Employment Conditions will be in accordance with regulatory requirements and Vision Australia Policies and Procedures. Breaches of the Policies and Procedures may result in disciplinary action.

392 That clause is entitled 'Other Conditions' and it will be noted that it refers specifically to 'Employment Conditions'.

393 Several clauses appear between the clause entitled 'Conditions of Employment' and the later clause entitled 'Other Conditions'. The intervening clauses address various aspects of the relationship and refer variously to -

(a) the Community Employment, Training and Support Services Award 1999;

(b) the packaging of non-salary benefits - which would ordinarily be undertaken by reference to relevant tax laws;

(c) superannuation contributions 'which the Organisation is required to pay under the relevant Commonwealth legislation'; and

(d) annual, sick and long service leave - which, broadly speaking, may also be the subject of 'regulation'.

394 It follows that, in context, the reference to 'Employment Conditions' would not reasonably be taken to refer only to the earlier clause titled 'Conditions of Employment'.

395 So much is essentially confirmed by the balance of the clause entitled 'Other Conditions', which states that the 'Employment Conditions will be in accordance with regulatory requirements and Vision Australia Policies and Procedures'.

396 In their ordinary meaning, the words 'will be in accordance with' suggest that the employment relationship will be conducted in a manner that complies with the classes of rules there specified; in this instance, 'regulatory requirements' and 'Vision Australia Policies and Procedures'.

397 In that sense, I tend to think that the words 'in accordance with' are little or no different in ordinary meaning to the words 'abide by' considered in Riverwood or 'to be observed' considered in Romero. In each instance, such words were considered to be capable of operating to incorporate specified documents if the specified terms were 'contractual'.

398 Further, the reference to 'regulatory requirements' should reasonably be read to embrace the classes of requirements variously earlier specified in the clauses of the contract, including the Community Employment, Training and Support Services Award 1999.

399 However, as with the earlier clause directed to 'conditions of employment', the promise in the contract is that the conditions of engagement 'will be' regulated in accordance with such requirements and, as I have indicated, the parties might objectively be thought to have contemplated that such 'requirements' might be modified during the period of employment, but that the engagement would continue to be conducted 'in accordance with' them, even if so modified.

400 For those reasons, while the contract specifically referred to the Community Employment, Training and Support Services Award 1999, I read it as having specifically contemplated that the relationship will continue to be in accordance with such subsequent award or equivalent 'regulatory requirement'.

401 It follows, in my view, that the reference to 'Vision Australia Policies and Procedures' is to be similarly understood. That is, at the time of making the contract, there were 'Policies and Procedures' in existence and the employment relationship must be conducted 'in accordance with' them, albeit that the content of those 'Policies and Procedures' should reasonably be thought to be capable of modification over time.

402 In that connection, it seems to me to be of significance that the clause makes specific reference to the consequences of breaches of the 'Policies and Procedures', namely that it 'may result in disciplinary action'. That is, the clause plainly contemplates that the 'Policies and Procedures' have a specific operation in respect of the discipline of employees that has the capacity to affect the quality and continuance of the employment relationship. The nature of that specific operation is, of course, to be found in the 'Policies and Procedures', which are outside the written terms of the contract, but may be apt to be incorporated within it by such reference.

403 The operation of the contract to which I have referred seems to me to be confirmed by the form of the acceptance clause that later appears. In that regard, it provides, relevantly, that -

This contract may be amended from time to time by mutual agreement between the parties.

I have read and fully understand the terms and conditions of employment detailed in this contract. I agree to comply with these terms and conditions of employment and all other Company Policies and Procedures.

404 As I have noted, the defendant highlighted the first part of the clause, and emphasised that the contract had not been amended to 'bring in' the Vision EA or any altered 'Policies and Procedures'. Nonetheless, as I have earlier observed, the plaintiff's pay seems to have changed over time albeit that the contract was not formally amended.

405 Further, as I have endeavoured to explain, the terms of the contract contemplated that the employment relationship would continue to be regulated by awards or equivalent instruments as well as policies and procedures even if there were alterations made to those requirements over time.

406 In that sense, in respect of the matters presently under consideration, it was unnecessary for the contract to have been amended by 'mutual agreement'; the parties had mutually agreed at the outset that the contract would be flexible enough to accommodate modification in the identified sources and requirements over time.

407 The final part of the clause, however, confirms that the plaintiff was required to agree that he would 'comply' with the 'Company Policies and Procedures'. The word 'comply' tends to confirm the earlier and specific meaning of the expression 'in accordance with'; namely, that the plaintiff will comply with specific requirements specified over time. In my view, that is to confirm that such specific requirements are incorporated into the contract if they are 'contractual'.

408 Further, as in Riverwood and the subsequent authorities that have considered an obligation of that kind, the fact that the acceptance clause required the plaintiff to agree to 'comply' with the 'Policies and Procedures' suggests that he should be taken to have accepted the implicit offer of the defendant to accept its mutual obligation in accordance with the provisions of its 'Policies and Procedures'.[304]

409 In that sense, the object, terms and context of the contract relevantly present as what the Full Court of the Federal Court in Romero described as being 'in the nature of a bargain with an exchange of undertakings and assurances or promises',[305] particularly in respect of the 'Policies and Procedures' and any 'disciplinary action'.

410 It follows that the contract may be taken to have operated to incorporate the industrial instruments - such as the Vision EA - and 'Policies and Procedures' over time, subject to the relevant parts of those documents being 'contractual'.

411 The question then is whether the disciplinary policy and procedure of July 2008, clause 47.5 of the Vision EA or the disciplinary procedure of April 2015 are relevantly 'contractual'.

412 Notwithstanding the plaintiff's references in argument to the disciplinary policy and procedure of July 2008, it must follow from the above that each is presently irrelevant. It is plain enough that by May 2015, those documents had been superseded by both clause 47.5 of the Vision EA and the disciplinary procedure of April 2015.

413 In respect of the latter documents, the written submissions of the defendant did not specifically contest the proposition that clause 47.5 of the Vision EA was in a form that was sufficiently specific so as to be contractual. The submission was that, in effect, it was not necessary to incorporate the clause because the Vision EA is a statutory instrument 'given statutory force' by operation of s 50 of the Fair Work Act and is also not specifically referred to in the contract of employment.[306] What I have earlier said should be sufficient to indicate that I cannot accept that either submission should displace the evident intention of the contracting parties to incorporate terms appearing in an instrument such as the Vision EA so long as those terms may be said to be 'contractual'.

414 In any event, clause 47.5 of the Vision EA is in very similar terms to the relevant parts of the disciplinary procedure of April 2015. In respect of the latter document, the defendant submitted that it -

is ... expressed in aspirational language and is not capable of giving rise to enforceable contractual obligations. The language used, throughout, is discretionary, descriptive, and equivocal such that it could not be said any of its terms give rise to enforceable contractual rights.[307]

415 In that regard, the written submission of the defendant directed attention to various parts of the policy and sought generally to deploy the language appearing in some of the authorities to which I have referred, particularly the relevant parts of Lloyd.

416 I have earlier referred to the terms of the disciplinary procedure of April 2015 relevantly in full.[308] It may be accepted that the opening paragraphs of that document contain expressions of commitment that might be said to be 'aspirational'. However, many written contracts contain recitals that are broadly descriptive or aspirational in form, and it does not follow that the operative parts of such documents do not stand as contractual terms.

417 The defendant also pointed to one of the opening paragraphs in the disciplinary procedure of April 2015 and sought to highlight the reference to 'this procedure, as well as all relevant industrial instruments and contract provisions', in support of a submission that the disciplinary procedure is 'seen as separate and distinct' from 'contract provisions'.[309]

418 I have already determined that the contract of employment contemplates that parts of the then current and subsequent industrial instruments and Vision Australia Policies and Procedures will be contractual. A paragraph in the nature of a recital in a much later procedure does not serve to displace that conclusion. In any event, the paragraph does not say that 'contract provisions' may not be founded in parts of such a procedure.

419 The remainder of the submission of the defendant is directed to those parts of the disciplinary procedure of April 2015 that use words such as 'may', 'should' and 'not appropriate'.

420 It may be accepted that parts of the procedure use the words identified, or similar. However, there are significant parts of the procedure that are quite clear and, as in Romero, amount to 'a responsive assurance' in the nature of a promise that in the event of disciplinary action the defendant will act in a very specific way. [310] In particular, it is quite clearly stated that -

(a) where the concern raised in relation to an employee is of a serious nature, 'a formal disciplinary meeting will occur';

(b) in that event, the employee will be provided with a letter containing 'a written outline of the allegations';

(c) the letter will request that the employee attend a meeting 'to respond to the allegations' and indicate that the employee may have a support person present;

(d) the letter will also indicate that disciplinary action up to and including termination may occur;

(e) the meeting will be attended by up to two management representatives;

(f) at the meeting, a discussion will occur and the employee will be given an opportunity to respond to the allegations;

(g) following the meeting, the defendant will make a decision; and

(h) the defendant will advise the employee of the decision and a written record of the decision will be placed on the employee's file.

421 In respect of the sequence of procedural steps identified, the procedure consistently uses the word 'will'. The language is promissory and the sequence of steps stated reads as obligatory. None of the steps to which I have referred are said to be in the nature of 'guidelines'. There is nothing 'discretionary', 'aspirational' or unclear about the language used; it is quite clear and prescriptive.

422 Much the same may be said about the relevant parts of clause 47.5 of the Vision EA.

423 In the circumstances, as in Romero, the terms to which I have referred present as promises of a contractual kind in exchange for the correlative behavioural requirements imposed by the other policies of the defendant directed to 'values' and the like. In my view, they were and are contractual in kind, and reflect a bargain essentially struck when the parties entered into the plaintiff's contract of employment in about September 2006.

424 In a sense, the relevance of one to the other, and the ongoing nature of the bargain earlier struck, is demonstrated quite plainly by the reference to clause 47.5 in the stand down letter and the other policies and procedures attached thereto.

425 Indeed, as I have earlier indicated, the assumption in much of the evidence at trial - and, for that matter, the submissions relevantly advanced on behalf of the defendant - was that the disciplinary procedure of April 2015 attached as an appendix to the stand down letter was no more than the flip side of the allegation that the plaintiff may have breached provisions of the 'Positive Workplace Behaviour Policy', 'Code of Professional Conduct Policy' and 'Vision Australia Values' documents also attached as appendices to that letter.

426 Further, in none of that evidence (or the defendant's submissions) was it suggested that the fact that the 'value' of being, for example, 'person centred', appeared in the 'Vision Australia Values' document, should be taken to have meant that the defendant or the plaintiff understood such a 'value' to be 'discretionary', 'aspirational' or 'equivocal'. Indeed, Mr Gow-Hills stated quite directly that he believed that the plaintiff had breached that value and that, consequently, his employment had quite correctly been terminated.[311]

427 In those circumstances, it cannot be accepted that the plain, clear and unequivocal terms to which I have referred in the disciplinary procedure of April 2015 should properly be understood to be merely 'discretionary', 'aspirational' or 'equivocal' and consequently not 'contractual'.

428 It follows, in my view, that the terms to which I have referred[312] - whether appearing in clause 47.5 of the Vision EA or the disciplinary procedure of April 2015 - are contractual and were incorporated into the employment relationship by operation of the terms of the plaintiff's contract of employment.

429 That being the case, of course, the fact is that -

(a) while the defendant did provide the plaintiff with the stand down letter that did contain some allegations made against him, that letter did not contain all of 'the allegations' made against him and ultimately acted upon by the defendant in determining to dismiss him; and

(b) similarly, the defendant did invite the plaintiff to attend a meeting, but that meeting did not involve the plaintiff being afforded an opportunity to respond to 'the allegations' actually made against him and subsequently acted upon by the defendant.

430 In short, the defendant breached the contractual promises owed to the plaintiff as a consequence of which his employment was terminated and he suffered, principally, very serious and ongoing psychiatric injury.

431 I do not understand the plaintiff's further contention that an implied term arose to add anything of significance to the above.[313] It is perhaps not even clear that any distinct 'implied term' argument was ultimately being advanced. The plaintiff's real point ultimately seems to have been directed to the incorporation into the contract of terms of the kind to which I have referred.

432 It is, perhaps, presently sufficient to say no more than that, for the reasons I have sought to explain, the plaintiff's contract claim must be accepted.

H Whether the defendant owed the plaintiff a relevant duty of care

433 Strictly speaking, it is unnecessary for me to determine the plaintiff's alternative claim in negligence. However, having regard to the attention directed to that claim in the course of the trial, I should address it.

434 As it emerged, the plaintiff contended that the defendant had owed to him and breached a duty of care in respect of the process by which his employment came to be terminated. As I have noted, the plaintiff subsequently suffered injury as a consequence of that termination, principally serious psychiatric illness.

(a) whether, in all the circumstances, the risk of the plaintiff sustaining recognisable psychiatric illness was reasonably foreseeable to the defendant in the sense that it was not far-fetched or fanciful;[314] and

(b) even if that is so, whether the defendant owed to the plaintiff a duty of care of the kind alleged.

436 The first issue was considered recently in Bersee v State of Victoria (Department of Education and Training) ('Bersee')[315] in which Beach, Niall and Macaulay JJA explained that -

(a) the inquiry is 'quintessentially factual';[316]

(b) the High Court in Koehler v Cerebos (Australia) Ltd ('Koehler') had refused to embrace any universal proposition that because stress may cause psychiatric injury, all employers must be taken to recognise that all employees are at risk of psychiatric injury from stress at work - such a proposition 'serves to aggregate what is an individual inquiry directed to the duty owed to each particular employee';[317]

(c) the subsequent case of Kozarov v State of Victoria ('Kozarov') had been run on the basis that 'evident signs' or sentinel events should have alerted the appellant's employer to the risk of psychiatric injury and so engaged the employer's duty of care - although, later in the High Court, Gageler and Gleeson JJ had considered that to have been an 'unnecessary evidentiary burden';[318]

(d) the High Court in Kozarov had, however, determined that in light of the nature of that particular work - which was inherently dangerous to the mental health of employees - the risk of harm had plainly been foreseeable and the duty had accordingly been engaged without the employee having to show 'evident signs of distress or harm';[319] and

(e) in that connection -

1. Properly understood, Koehler and Kozarov are at opposite ends of a single spectrum and do not represent a divergence in principle. In Koehler, the plaintiff was performing work of a relatively routine nature that she had agreed to perform. In order to establish that psychiatric injury was a reasonably foreseeable consequence of performing the work it was necessary to take into account what the parties had agreed under the contract of employment. A generalised understanding that workplace stress can lead to injury was insufficient, in the absence of 'evident signs' by the particular employee. In Kozarov, the employer had acknowledged that vicarious trauma and therefore psychiatric injury were an obvious consequence of exposure to trauma, and a search for evident signs in the plaintiff was unnecessary to establish the relevant duty of care.
2. Kozarov makes plain that evident signs of distress or vulnerability on the part of a plaintiff are not a precondition that must be satisfied before psychiatric injury can be found to be reasonably foreseeable and are not a legal criterion for liability. Rather, they provide a means by which reasonable foreseeability may be established on the facts, and in some cases, the absence of them may mean that the employer would have no reason to suspect that psychiatric injury is on the cards for the particular employee or class of employees.

...

1. There is a further matter that should be noted. Although to describe reasonable foreseeability as 'undemanding' may be tendentious, nevertheless, it is important that it not be used to erect too high a barrier. A requirement that there be evident signs in every case has the consequence that the duty to take reasonable care to avoid injury is likely to arise once the psychiatric injury has been suffered and manifested itself in symptoms. It remains possible that a psychiatric injury will occur before a risk of its occurrence is reasonably foreseeable by the employer. But, were the requirement of evident signs to be the universal approach, duty would nearly always follow injury. The difference between an 'evident sign' and a symptom of mental illness is likely to be elusive, especially for the untrained eye of an employer. In part that may be a reflection of the difficulties that inhere in claims of this kind and which are discussed in cases such as Hegarty and The Age v YZ. Employees may want to keep to themselves that they are struggling until symptoms become florid, and employers may reasonably be cautious about inquiring about an employee's mental health. All of these matters remain part of the mix of assessing whether injury is reasonably foreseeable and what a reasonable employer would do to respond to such a risk.

The relationship of employer/employee is a well-recognised category in which a duty of care is imposed. It requires the employer to take reasonable steps to ensure a safe system of work. It also requires a degree of awareness as to the type of risks that may be associated with the performance of work.[320]

437 The latter point is an important one: the non-delegable duty of care owed by an employer to an employee must often involve a degree of anticipation concerning the potential for risk. Further, the issue is to be determined by reference to the anticipation of the ordinary reasonable employer; not an unreasonable or blinkered one.

438 In that context, the Court of Appeal in Bersee considered psychiatric injury to the applicant to have been reasonably foreseeable 'from the start of 2014' and pointed to -

(a) the employer's contemplation of a change to the work practice;

(b) the fact that the school had been informed that the change would have a greater impact in the area in which the applicant worked - which could have consequences for the applicant's health and safety;

(c) the fact that the applicant had previously found increases in workload difficult and raised that issue in 2010 - which 'showed a degree of vulnerability to stress as a result of a change in workload'; and

(d) the fact that the work conducted by the applicant carried a risk of physical injury to students and staff.[321]

... psychiatric injury to the applicant caused by an increase in workload was more than merely predictable. It is not unreasonable to require an employer to have in contemplation the risk of injury of this kind in such circumstances.[322]

440 In that connection, the Court of Appeal emphasised that whilst '"evident signs" of distress and vulnerability' would have 'reinforced any conclusions as to reasonable foreseeability and have been highly pertinent to the content of the duty of care', they were not necessary conditions of liability.[323]

441 In the present instance, the plaintiff sought to distinguish Koehler as 'a case of an altered system of work' in which the employee was 'overworked' and otherwise submitted that reasonable foreseeability had been established via the evidence of various witnesses to the effect that the risk of psychiatric injury was, in the circumstances, possible.[324]

442 While it may be accepted that Koehler involved a particular factual situation, the question of reasonable foreseeability of the risk of psychiatric injury presented as a 'critical inquiry' in that case, and also in Kozarov and Bersee. I reject the submission that any difference in the facts in Koehler should render presently distinguishable the principles there discussed.

443 I also reject any submission, if made, that no issue of reasonable foreseeability of psychiatric injury arose because the plaintiff also suffered physical injury. In that regard, the plaintiff suffered very serious psychiatric injury as a consequence of the circumstances in which his employment was terminated. One aspect of his claim is directed to physical injury - namely aggravation of pre-existing ulcerative colitis. However, the claim for psychiatric injury overshadows all aspects of his claim and, on the evidence, the later aggravation of the ulcerative colitis occurred secondary to psychiatric injury anyway. In the circumstances, no relevant duty of care could be taken to have been engaged without it being established that a risk of psychiatric injury to the plaintiff was relevantly reasonably foreseeable to the defendant.

444 In light of the above, it is to be recalled that while the plaintiff had attended his general practitioner and Mr Walker, psychologist, in respect of symptoms of anxiety and depression prior to the events relating to the termination of his employment in May 2015, there was no suggestion that any representative of the defendant had known of that treatment. Indeed, it was not evident that the plaintiff had told his mother, sister or Mr Nunns at that time.

445 In that context, as I have noted, the plaintiff pointed to evidence to the effect that psychiatric injury in the circumstances of termination of employment can occur and therefore might or 'would' be possible.[325] In that regard, Mr Nunns stated -

I'm not a medical practitioner, what I do know [is] that botched processes, abuses of power and authority, have significant and long lasting effects on the mental health and wellbeing of employees that we represent. And employers sadly are not as cognisant and as aware as they should be when framing allegations, in my experience, myself and my colleagues see this far too often ...[326]

446 The relevant evidence of the defendant's witnesses did not suggest that Vision Australia was an employer that was wholly unaware of the potential psychological or psychiatric effects of a termination of employment. Mr Gow-Hills and Mr Van Dyk were the most senior human resources professionals that gave evidence, and in that regard -

(a) Mr Gow-Hills did not resist the general proposition and quite freely acknowledged that a psychological or psychiatric effect as a consequence of wrongful termination was 'always a possibility';[327] and

(b) Mr Van Dyk said that 'people can be upset' and, consequently, 'we provide support', including an employee assistance program, and said 'there's an opportunity to talk to ... counsellors if people want to'.[328]

447 The relevant evidence of Ms Hauser initially acknowledged the general risk and then sought to retreat into a rather more defensive posture.[329] The evidence of Ms Eagle was of a somewhat similar nature: she denied that a psychological or psychiatric impact upon the plaintiff was 'likely', but then acknowledged the possibility.[330]

448 The evidence to which I have referred tended to provoke enquiries in re-examination directed to whether the witness had 'medical training' or knowledge of 'diagnosable psychiatric injury'.[331] However, it will be evident from what I have already said that it is not necessary for an employer to be medically qualified in order that a risk that a worker could suffer psychiatric injury might be reasonably foreseeable.

449 I should note that Associate Professor Doherty also gave evidence concerning whether the plaintiff's psychiatric response could be considered to be a 'plausible, if not expected, outcome of someone who had perceived their termination of employment as being wholly unlawful', to which he replied -

I don't think so, I - it's extraordinary that he's - you know, it's extraordinary that his personal and social network has fallen apart, that he's not looking after himself, that he needs the support of his parents, and that's extraordinary and not in keeping with the reasonable and, you know, understandable effect of a sense of being terminated wrongly.[332]

450 That is, whilst it might be 'understandable', and by no means unknown, that a wrongful termination of employment might have a psychological and even psychiatric effect upon a worker, the reaction of the plaintiff to that event has been rather more than would ordinarily be seen.

451 In that sense, the evidence of Associate Professor Doherty was broadly consistent with the evidence of the defendant's witnesses, the most senior of whom, as I have noted, relatively freely acknowledged that a termination of employment was capable of provoking an adverse psychological or psychiatric effect in employees.

452 I should say that some of the evidence to which I have referred concerned the specific circumstances of the plaintiff. For example, when asked whether he had considered or anticipated 'some form of psychological downturn' in the plaintiff, Mr Gow-Hills stated -

I don't recall there being any awareness on my own part about Mr Elisha's particular vulnerability to an outcome like that. Um, sometimes in my, in my work, I have an awareness that someone's frequently accessing the employee assistance program, they have taken extensive sick leave, and identifying stresses that caused, may have made declarations about feeling very stressed and so on, I don't recall any knowledge of that in advance. So I say I had no basis to be concerned about the potential impact on Mr Elisha's physical or psychological wellbeing.[333]

453 On the other hand, at the time of the plaintiff's dismissal -

(a) Mr Gow-Hills and all other relevant witnesses of the defendant were influenced by the insubstantial slurs deployed against the plaintiff in secret by Ms Hauser;

(b) consequently, those witnesses were disposed to wholly accept the account of Ms Trch concerning the behaviour of the plaintiff in Bairnsdale and entirely dismiss the plaintiff's account;

(c) indeed, Mr Gow-Hills considered the plaintiff to be being 'untruthful to avoid accountability';[334] and

(d) neither Mr Gow-Hills nor Mr Van Dyk had met with the plaintiff.

454 In those circumstances, it seems to me to be unlikely that any of Mr Gow-Hills, Mr Van Dyk, Ms Eagle or Ms Hauser were attuned to any signs of vulnerability in the plaintiff: they saw him as an aggressor and were very far from sympathetically disposed to his position.

455 Further, the fact that those involved say that they did not perceive the plaintiff to be psychiatrically vulnerable says a lot more about the stance that they adopted when dealing with him than whether any risk of psychiatric injury was at the time objectively reasonably foreseeable.

456 In the context to which I have referred, like the circumstances in Bersee, the circumstances of the present case must fall somewhere in the 'spectrum' between Koehler and Kozarov. On the one hand, it is not an 'overwork' case, in which the plaintiff must be expected to be able to perform the duties that he has contracted to undertake unless the employer has sufficient reason to suspect otherwise. On the other hand, it is not a case in which the risk concerned was the subject of a written policy specifically developed in order to anticipate and address it.

457 That said, on the evidence, the possibility or risk of psychiatric injury arising from a termination of employment was by no means far-fetched and, indeed, the defendant had established processes of support, including counselling, available to employees in order to anticipate and address it.

458 Further, and specifically in respect of the plaintiff -

(a) in at least the period of several months prior to the termination of the plaintiff's employment, the relationship between the plaintiff and his manager, Ms Hauser, seems to have been strained;[335]

(b) that seems to have been understood by Mr Gow-Hills - as Ms Hauser had been complaining to him about the plaintiff for at least 'many months' and perhaps a '12-month period';[336]

(c) he had accessed the employee assistance program and, indeed, may have accessed it in the months prior to May 2015;[337]

(d) in that regard, Ms Hauser had offered the plaintiff the employee assistance program and on one or two occasions asked him whether he was 'okay';[338]

(e) Mr Gow-Hills seems to have been able to identify whether an employee had been accessing the employee assistance program[339] - at least in some cases - but it was implicit that he did not do so in respect of the plaintiff, perhaps for the reason to which I have already referred;[340] and

(f) at some point in the 6 to 12 month period before the plaintiff's dismissal, Ms Hauser asked the plaintiff whether he had considered leaving the organisation, which he found 'shocking'.[341]

459 In addition to the above, of course, the accounts of events in Bairnsdale, on any view, disclosed the circumstances and the reactions of those involved to have been, to say the least, a little odd. It should not have been hard to imagine that those involved - including the plaintiff - might have been somewhat vulnerable for things to have unfolded as they evidently did.

460 Further, the evidence concerning the presentation of the stand down letter and subsequent meeting with the plaintiff on 26 May 2015 strongly suggests that Ms Hauser and Ms Eagle approached those events in a manner that was wholly solicitous of Ms Trch and wholly unsympathetic in respect of the plaintiff.[342] It is not hard to imagine that a worker presented with such circumstance would be at risk of very great distress.

461 Indeed, both the plaintiff and Mr Nunns seem to have been alive to the 'vibe' -

(a) after being presented with the stand down letter and immediately prior to the meeting on 26 May 2015, the plaintiff saw Mr Walker who noted 'my boss is behind it' and 'she has it in for me';[343]

(b) the plaintiff said that Ms Hauser 'didn't care' when he pleaded with her after the stand down letter was presented;[344]

(c) the plaintiff described the subsequent meeting on 26 May 2015 as 'corrupt' and 'poorly conducted' - he said that 'at that time I knew there was something wrong';[345]

(d) Mr Nunns described the allegations made against the plaintiff as 'reckless and negligent' and during the meeting on 26 May 2015 described them quite directly as a 'farce' and 'ridiculous';[346]

(e) Mr Nunns described the evident unfairness of the process as follows -

if the allegations are found to be proven, then, and we're proposing an outcome, if a termination has been proposed you'll ordinarily get a show cause letter to say 'give us a reason why we shouldn't terminate'. If the outcome is proposed a disciplinary, first warning, second warning, first and final warning is proposed and then you are given an opportunity to respond to say any mitigating factors you'd like us to consider. Employers get it right, employers also get it wrong. So in terms of the process after that meeting there was a number of steps that would ordinarily be invoked before a termination without notice is exacted on Mr Elisha. I hope that makes sense ...[347]

(f) perhaps even more strongly, in re-examination Mr Nunns said -

it's just a total failure of process, it's just an abject denial of procedural fairness and natural justice, to use those often quoted phrases, it's an abject failure of the highest order, in my opinion. I don't see situations like this very often. It is exceptional in the negative sense.[348]

462 To conduct a sham process in which a worker is, in effect, convicted by reference to insubstantial secret slurs, and in a manner such that the worker perceives that something below the surface is 'wrong' but is therefore unable to be combatted, does seem to me to present an acute position of powerlessness in the worker that could well be at reasonably foreseeable risk of precipitating more than the usual degree of distress and even psychiatric injury.

463 Further, the fact that the plaintiff and Mr Nunns perceived that there was a palpable injustice involved means that the representatives of the defendant must have been in an even better position to do the same. Equally, by reference to that knowledge and the recognised risk of carrying out a properly conducted termination, the defendant must have been in a position to anticipate the aggravated potential risks to the psyche of the plaintiff presented by improper conduct.

464 In the end, the issue is one of fact that involves elements of evaluation,[349] it is important not to erect 'too high a barrier'[350] and the standpoint is that of the reasonable employer.

465 In that context, the circumstances involved were not those of a merely abstract 'predictability' of risk of psychiatric injury to all employees. The broad risk was recognised and, consequently, there were systems directed to it. However, the circumstances involving the plaintiff in the period leading up to May 2015 and the palpably closed minded manner in which the steps of the process were executed in respect of him reasonably suggest that he must have been more at risk of consequential psychiatric injury than simply some 'ordinary' employee involved in an 'ordinary' termination.

466 In my view, in May 2015, the risk that the plaintiff might suffer psychiatric injury as a consequence of the manner in which his disciplinary process and ultimate termination came to be implemented was reasonably foreseeable to an ordinary reasonable employer in the position of the defendant.

467 The second issue was provoked by the contention of the defendant that the common law does not recognise any duty of care 'in respect of matters concerning the termination of the plaintiff's contract of employment, as distinct from performance under that contract'.[351]

468 In that regard, the defendant relied upon the decisions of the New South Wales Court of Appeal in State of New South Wales v Paige ('Paige')[352] and the Queensland Court of Appeal in Govier v The Uniting Church in Australia Property Trust (Q) ('Govier').[353]

469 For his part, the plaintiff submitted that both cases should be distinguished and otherwise referred to the general duty of care owed by an employer to an employee referred to by the High Court in Czatyrko v Edith Cowan University.[354]

470 Paige concerned a high school principal whose alleged negligence was dealt with pursuant to provisions in the Teaching Services Act 1980 (NSW), and who was found guilty in respect of non-compliance with departmental procedures. He resigned and suffered psychiatric harm.

471 The principal - respondent to the appeal - had succeeded at trial, where the duty of care had been formulated as encompassing 'the provision of a safe system of investigation and decision making' with respect to discipline and termination of employment. The 'defects' identified by the trial judge included a denial of procedural fairness and a submission that the contract of employment had 'never been validly terminated'.

472 Spigelman CJ, with whom Mason P and Giles JA agreed, described the formulated duty as 'novel' and involving 'an extension of employers' duties'.[355]

473 His Honour referred to the then relatively recent decision of the High Court in Sullivan v Moody[356] and identified that the postulated duty would intersect with the law relating to the judicial review of administrative action and also 'the law of contract, as modified by statute, with respect to wrongful dismissal under a contract of employment'.[357]

474 In respect of the former, his Honour considered any such duty to give rise to 'issues of compatibility' with the 'statutory decision making process',[358] which he thereafter examined in some detail, together with aspects of authority.

475 In respect of the latter, his Honour described Addis v Gramophone Company Ltd ('Addis')[359] as having 'long been cited as authority against recovery of damages for the manner of dismissal'[360] and, in that connection, referred to Baltic Shipping Company v Dillon ('Baltic Shipping').[361] His Honour noted the exception identified in Baltic Shipping in respect of physical injury, but 'would not extend ... [that] to psychiatric damage'.[362]

476 His Honour then discussed the decision of the House of Lords in Johnson v Unisys Ltd ('Johnson'),[363] and considered 'similar considerations' to apply to 'the Australian industrial relations context'. In that connection, his Honour identified various provisions in the Industrial Relations Act 1996 (NSW) and stated -

1. The New South Wales legislation thus evidences a similar intention to that discussed in Johnson v Unisys, namely, to limit the class of applicants and the quantum of compensation that may be awarded within reasonable parameters, in the interests of employers and the community generally. Burazin v Blacktown City Guardian [(1996) [1996] IRCA 371; 142 ALR 144] suggests that awards for compensation may be made for psychological injury provided the quantum is within the specified limits. Additionally, the scheme for dealing with unfair dismissal claims involves a specialised tribunal, with a range of remedial options and a requirement to expedite the proceedings by bringing a claim, in the usual course, within 21 days of dismissal.
2. These arrangements are directed to the efficient handling of unfair dismissal claims and would be thwarted by the creation of a parallel remedy of unlimited scope, that could be sought at any time, subject only to the Limitations Act, and would be dealt with in the general jurisdiction of the NSW court system without the availability of the primary remedies of reinstatement or reemployment.

477 His Honour considered similar considerations to arise from the then applicable Commonwealth legislation and thereafter concluded that -

1. The area of unfair dismissals is heavily regulated in both the State and Commonwealth contexts. It represents a particular and carefully calibrated balancing of the conflicting interests involved namely, between preserving the expectations of employees on the one hand and enabling employers to create jobs and wealth, on the other hand. The arguments and factors accepted in Johnson v Unisys are directly applicable to the legislation examined above and the same conclusion, namely a refusal to expand the duty of care in negligence to provide an alternative cause of action for unfair dismissals, should be the result.
2. The expansion of the law of tort to matters concerning the creation and termination of a contract of employment, as distinct from performance under the contract, may distort the balance of conflicting interests found to be appropriate as a matter of contract or by intervention of statute. Where, as here, the courts are asked to create a novel duty of care, the courts should refrain from doing so where there is such a well developed alternative mechanism for adjusting the interests involved. Matters concerning the creation and termination of a contract of employment can, in my opinion, properly be left to the law of contract, subject to the extensive statutory modification that the parliaments have introduced into this specific area of contract law.

478 His Honour then turned attention to issues of coherence with administrative law and thereafter stated his overall conclusion as follows -

1. One matter that operates in favour of the recognition of the duty in the present case is the fact that it focuses on a relationship, i.e. that of employer and employee, in which a wide range of duties - indeed non-delegable duties - already exists. The authorities suggest that the development of the law in this respect should be incremental and proceed by analogy with established categories, e.g. Sutherland Shire Council v Heyman [1985] HCA 41; (1985) 157 CLR 424 at 481 per Brennan J.
2. Whether something should be described as "incremental" is a matter on which reasonable minds may differ. It may be appropriate to describe the addition of a new kind of duty into a relationship replete with such duties, as "incremental" in the relevant sense. The fact that so wide a range of duties is already recognised in the particular relationship is a factor in favour of recognising a new category. It does not, however, appear to me that the present context involves any analogy with an established category.
3. Another factor which is of significance is the vulnerability of the persons who may be subjected to negligent conduct. (See the authorities collected in Reynolds v Katoomba RSL All Services Club Ltd [2001] NSWCA 234; (2001) 53 NSWLR 43 at [29]- [43].) In the present case, this factor would favour recognition of a duty. With respect to the disciplinary process, a person whose conduct is being investigated is not able to protect himself or herself, other than by way of protest and proceedings for judicial review, if the investigators fail to observe proper procedures.
4. Finally, the element of "control" has been emphasised in a number of judgments. That element is satisfied here, in the sense that the Appellant, by its officers, was in control of the disciplinary process.
5. Nevertheless, the issues of coherence with the law of employment and administrative law, which I have discussed above, together with the element of incompatibility of duties, are so significant as to outweigh these considerations. In my opinion, there was no duty of care of the character found by his Honour.

479 Early in the present proceeding, senior counsel for the plaintiff said that Paige had been the subject of an application for special leave to appeal to the High Court that had subsequently been discontinued.[364]

480 In final submissions, it was contended that Paige should be distinguished because of the 'impact', in that case, of the provisions of the Teaching Services Act 1980 (NSW) on the scope of any duty in tort.[365] It will be evident, however, that while issues of coherence were considered to arise in respect of those provisions, they were by no means the only issues of coherence there considered to arise.

481 That said, Paige might be said to have presented in particular circumstances involving concerns of coherence arising from, among other things, the provisions of both the Teaching Services Act 1980 (NSW) and the Industrial Relations Act 1996 (NSW). Neither statute applies in the present instance, of course, and the provisions of the Fair Work Act, which would be relevant to the argument, seem to be different in at least one very material respect, namely that s 392(4) specifically provides that -

The amount ordered by the FWC [Fair Work Commission] to be paid to a person under subsection (1) [ie, in proceedings for compensation for unfair dismissal] must not include a component by way of compensation for shock, distress or humiliation, or other analogous hurt, caused to the person by the manner of the person's dismissal.

482 The explanatory memorandum relating to the Fair Work Bill 2008 (Cth), by which s 392(4) came to be introduced, relevantly states that -

This reflects the common law position that shock, distress or humiliation resulting from the dismissal is not compensable (Addis v Gramophone Co Ltd [1909] AC 488 and Baltic Shipping Co v Dillon (1993) 176 CLR 344).[366]

483 As I have earlier noted, one of the matters specifically considered by Spigelman CJ in Paige was that the provisions there under consideration seem to have permitted awards for compensation for psychological injury. However, the presently applicable provisions do not. It is plainly one thing to point to concerns about incoherence with an applicable statute when the scheme in question provides for a remedy in respect of the injury claimed, but arguably quite another when it specifically does not.[367]

484 In the present case, the arguments of the parties did not go in any great detail to the difference to which I have referred, or to any other potentially relevant differences between the provisions of the Industrial Relations Act 1996 (NSW) and the Fair Work Act. At the very least, however, the difference to which I have referred tends to underline the general point that if issues of incoherence are presently said to arise between the plaintiff's claim in negligence and any provisions of the Fair Work Act, those issues must be made apparent by reference to the provisions of that particular Act. For that reason, care must be taken with broad propositions of the kind presently advanced by the defendant to the effect that Paige itself necessarily creates 'an insuperable barrier'.[368]

485 There may well be other reasons to be careful with such a proposition, as well as component propositions such as that unfair dismissal claims brought pursuant to the provisions of the Fair Work Act would inevitably be distorted by the spectre of common law claims in respect of psychiatric injury.

486 As Paige emphasises, and this case also shows, unfair dismissal claims tend to be brought on quickly. As Paige and this case also show, however, common law claims for psychiatric injury tend to be brought on many years after the events concerned. For that matter, it is commonly the case that psychiatric injury is not clearly manifested and diagnosed until a period of time well after whatever events might ultimately be found to have precipitated them.

487 In that quite common order of things, it is not easy to see how a risk of a much later common law action directed to psychiatric injury would often be at risk of 'distorting' the conduct and determination of an early unfair dismissal proceeding; particularly when, as I have noted, that proceeding cannot address issues of 'shock, distress or humiliation, or other analogous hurt' even if they are then manifested.

488 Such considerations are, of course, of a practical kind. Nonetheless, there are probably also relevant legal considerations. For example, the potential for any issue estoppel arising out of one such setting to apply in the other must be very limited, if any.[369] Again, considerations of the kind to which I have referred were not presently examined by the parties in any detail in submissions.

489 Finally, there must be the question of the rationale for and ambit of the preclusion effected by a principle of the kind pressed by the defendant. In that regard, one can understand, in broad terms, the need to protect the integrity of a statutory scheme of discipline that can lead to termination of employment. However, many common non-statutory processes of performance review and the like are capable of examining similar or identical issues, and it was not presently suggested that an employer might not owe to an employee a duty of care in those circumstances if psychiatric injury was reasonably foreseeable.

490 Further, real issues may well arise concerning the point at which any such preclusion starts and finishes. In Paige, Spigelman CJ plainly considered the preclusion to cover at least the ambit of the duty of care that had been formulated by the trial judge, namely in respect of 'procedures for discipline and termination of employment'.

491 However, as the reasoning of his Honour tends to show, the problem with that duty was in its relation to the statutory provisions and other considerations to which he referred. It should not be assumed that in every case, any such preclusion must extend to any and all elements of disciplinary and other procedures that are in any way related to 'procedures for discipline and termination of employment'. Much must depend upon the statutory and other considerations applicable in the particular case.

492 In the end, as I have endeavoured to indicate, the statutory provisions and other considerations involved in any particular case may well need to be steadily borne in mind and very great care must be taken with broad propositions of the kind presently sought to be advanced by the defendant.

493 Notwithstanding the above, as I have noted, the defendant also relied upon Govier, in which the appellant had claimed damages for psychiatric injury resulting from 'insensitive' letters sent by the respondent after she had been attacked and injured. By reference to Paige, the trial judge had accepted that the proposed duty of care did not arise.

494 A range of issues arose in the appeal, including whether the respondent had owed any relevant duty of care to the appellant in connection with the letters. In that connection, the appellant contended not that Paige was wrongly decided, but that it was distinguishable.

495 Fraser JA, with whom Gotterson JA and North J agreed, carefully considered the reasoning of Spigelman CJ in Paige, and the distinction sought to be made by the appellant, and concluded as follows -

1. The appellant sought to distinguish Paige on the ground that it involved a statutory process of investigation and asserted requirements by the employer which would have been inconsistent with the statutory procedures. That difference between this case and Paige has no bearing upon the New South Wales Court of Appeal's decision that the proposed duty by an employer to supply a safe system of investigation and decision-making in relation to the incidents of an employee's contract of employment, as opposed to a safe system of work in relation to the conduct of tasks for which an employee was engaged, would involve a novel category of duty of care. In relation to the question whether that novel category of duty should be established, the passages from Paige extracted in these reasons show that the New South Wales Court of Appeal dealt separately with the question whether the proposed duty of care would be incompatible or incoherent with the law of contract, as modified by statute, concerning termination of employment. I do not regard this suggested ground of distinguishing Paige as a sufficient basis for holding that the respondent owed the appellant the postulated novel duty of care in the course of the respondent's investigation in this case.
2. For these reasons I would affirm the primary judge's finding that the respondent did not owe to the appellant a duty of care to avoid injury to the appellant by sending the letters.

496 It will be evident that his Honour considered an incompatibility with 'the law of contract, as modified by statute, concerning termination of employment' to be sufficient to stand against acceptance of the 'novel' duty of care there postulated.

497 In the present instance, senior counsel for the plaintiff relied upon the fact that special leave to appeal to the High Court had been granted in Govier,[370] and that in the course of the later hearing of the appeal, that grant had been revoked because the appellant's contract of employment had not been placed into evidence at trial.[371] It could not follow, however, that for that reason the authority of Govier must be taken to be impugned.

498 Paige was later confirmed to be correct by the New South Wales Court of Appeal in Shaw v State of New South Wales.[372] However, Paige was also considered by the Queensland Court of Appeal prior to Govier;[373] and Paige and Govier have since been considered, also in Queensland.[374] Several of those cases deserve particular mention.

499 In Hayes v State of Queensland ('Hayes'),[375] a majority of the Queensland Court of Appeal distinguished Paige in the course of finding that the law did not preclude a duty to take reasonable care to avoid psychiatric injury arising such as to require that an employer provide adequate support to an employee who was relocated or reassigned while an investigation into complaints was otherwise proceeding.

500 In Ackers v Cairns Regional Council,[376] the plaintiff claimed psychiatric injury as a consequence of breach of duty by the defendant in imposing a performance improvement action plan. The defendant relied upon Paige and Govier. Henry J rejected the argument and stated as follows -

[239] The present case is quite different than both Paige and Govier. Council's conduct, to which I will shortly turn, did not occur in the context of investigating or deciding complaints of an unlawful conduct, such as the alleged assault in Govier, or of a breach of discipline contrary to statute, such as the disclosure violations in Paige. As will be seen, the process purportedly undertaken was not a disciplinary process; it was a purported performance management process.

[240] Further, to apply the line of reasoning in the above cases here involves the argument that an employer under no circumstance owes a duty of care to an employee in purporting to take an employee to task about mistakes the employee has allegedly made in the performance of his or her job, because it would be incompatible with the employer's contractual right to require competent job performance. Carrying Council's incompatibility argument to its logical extent would have the remarkable consequence that employers have no duty of care to protect their employees from workplace bullying or other acts of petty vengeance carried out under guise of correcting the employee's allegedly poor performance.

[241] There is no logical incompatibility between the existence of the right to require competent job performance and liability in negligence for a breach of the duty of care to avoid foreseeable risk of psychiatric injury, if the breach involves a process of purported correction of job performance which is carried out in bad faith or contrary to the employer's own processes and procedures. Such conduct bespeaks an other than genuine purported exercise of the contractual right. It was present here. I accordingly reject Council's incompatibility argument.

501 In Potter v Gympie Regional Council ('Potter First Instance'),[377] the plaintiff claimed negligence of the defendant in dealing with work performance issues that arose and as a consequence of which he had been suspended. He had subsequently been cleared of allegations of serious misconduct, but lesser findings were made. He suffered psychiatric injury.

502 The claim failed and was determined by reference to reasonable foreseeability or otherwise breach or causation. Nonetheless, the defendant relied upon Paige and Govier in support of a contention that there was no duty 'to safeguard against the risk of psychiatric injury to an employee in suspending an employee'.[378]

503 Brown J distinguished Paige and Govier from the present case to the extent that it involved 'work performance management'. In that connection, her Honour stated -

I do not consider that the nature of the meeting of 30 June 2014 was akin to an investigation, or that it was beyond the conduct of tasks an employee was engaged to perform, such that a duty to take reasonable care against a foreseeable risk of psychiatric injury was excluded by the principles set out in Paige and Govier.[379]

504 As to the suspension, however, her Honour concluded -

While the plaintiff seeks to frame its argument by reference to the decision to suspend or direct him not to perform work as altering his day to day work duties, that in my view, is an incorrect characterisation. The effect of the decision to suspend an employee or direct the employee not to perform work while an investigation is carried out requires an employee not to perform work at all during that period at the workplace. It alters the employee's state from working to not working whilst still being employed not the employee's work duties. The decision to suspend is therefore outside of the employer's duty to provide a safe system of work.[380]

505 Her Honour later confirmed that no duty of care was owed to 'supply a safe system of decision making' or when deciding to suspend the plaintiff.[381] In that sense, her Honour distinguished the circumstances from those in Hayes in which, as I have noted, a relevant duty had been accepted.

506 Most recently, the Queensland Court of Appeal dismissed an appeal in Potter v Gympie Regional Council ('Potter').[382] In that regard, Flanagan JA, with whom Mullins P and William J agreed, determined that the trial judge had been correct to distinguish Hayes. His Honour confirmed that such a duty could not extend to 'incidents of the contract of employment' such as the 'disciplinary procedures' there under consideration.[383]

507 In a sense, his Honour's reasoning looked beyond the details of the reasoning in Paige and was prompted by the broader nature of the reasoning in Govier as well as the distinction between the circumstances under consideration in Potter and those considered earlier in Hayes.

508 The decisions to which I have referred tend to highlight the care which must be taken when it is sought to treat Paige or any of the cases to which I have referred as ipso facto 'insuperable'.

509 That said, in Queensland, in particular, there does seem to be support for the proposition that there can be no duty of care in respect of the 'incidents of the contract of employment' such as the exercise of a power to suspend in connection with disciplinary procedures and, as I have indicated, that proposition seems to carry within it an acceptance of the correctness of the underlying reasoning in Paige and Govier.

510 In any event, in the present instance it is evident that very real care must be taken with any proposition to the effect that a duty of care in respect of the process by which the plaintiff's employment came to be terminated should necessarily be thought to be incompatible with the statutory scheme of the Fair Work Act and therefore precluded.

511 In light of that to which I have referred, and the manner in which the issue was presently argued, I would not conclude that the plaintiff's claim is necessarily precluded by that aspect of the reasoning in Paige or, for that matter, Govier.

512 That said, the recent reasoning in Potter, in particular, is significant, and cannot be ignored. In that regard, it tends to suggest that such a duty will be incompatible with disciplinary procedures, particularly in a case where the appellant was suspended from work but his employment was not at that time terminated.

513 Further, the reasoning in Paige is based in more than one suggested element of incoherence. As I have earlier noted, a significant element of that reasoning was identified as based in the 'line of authority' involving Addis and Baltic Shipping.[384] In that connection, Spigelman CJ referred to the decision of Ashley J in Aldersea v Public Transport Corporation ('Aldersea'),[385] which is, obviously, a decision of this Court.

514 Aldersea is a ruling on the admissibility of certain proposed expert evidence. However, Ashley J also examined various relevant elements of the law in considerable detail, including Addis, Baltic Shipping and Johnson. In that context, his Honour did not consider there to be any relevant distinction between 'distress' and injury, including, seemingly, psychiatric injury[386] and ultimately concluded as follows -

In all, I conclude that the Australian common law does not yet recognise an entitlement to damages for personal injury resulting from wrongful termination of a contract of employment. The very few cases which have yielded a contrary result appear to be at odds with the principle.[387]

515 His Honour noted the relevance of that conclusion to any claim there pleaded in contract. However, the proposition seems to me to be broader and common sense would suggest that it is broader: if the common law recognises no claim for damages for personal injury based in wrongful termination of a contract of employment, how could a case in respect of the same events framed in the common law of negligence produce a different result?

516 His Honour's reasons highlight the difficulties in some of the authorities referred to, including in distinguishing what is ratio and what is dicta. Despite this, it is tolerably clear that absent contractual terms that could permit such a case, or the application of any of the exceptions referred to in Baltic Shipping (which were not presently developed in argument), the common law seems to stand against a negligence claim such as the present that is directed to the termination of the plaintiff's contract of employment.

517 In argument, senior counsel for the plaintiff submitted that the law was 'in a state of flux' and said that the 'tectonic plates' - namely, Addis, Paige and Govier - were 'on the move'.[388] In that regard, however, 'no major court decision'[389] was identified and reference was made to an academic article that was later criticised in address by senior counsel for the defendant.[390] In respect of Aldersea, senior counsel for the plaintiff simply submitted that 'in the current context of the law' it 'should not be followed'.[391] That submission was not further developed.

518 Whilst it might be that elements of Paige and Govier have been the subject of a measure of examination in recent cases, it could not be said that the central reasoning in those cases has been displaced, rather than more recently confirmed, and it is not obviously the case in that there has been any relevant recent examination of the relevant reasoning in Addis or Baltic Shipping. As I have indicated, the latter authorities are important in the reasoning in Aldersea and also in part of Paige.

519 I am, of course, mindful that in Addis, the plaintiff's claim arose because of the 'abrupt and oppressive way' in which his services were discontinued.[392] In that case, the plaintiff was a manager of the defendant's business in Calcutta and was peremptorily removed and replaced. The controversy concerned the part of a jury's award that must have represented more than simply an account of what the plaintiff would have earned in the balance of the contractual period.

520 Taking the speech of Lord Loreburn LC as an example, he considered that -

indemnity cannot include compensation either for the injured feelings of the servant, or for the loss he may sustain from the fact that his having been dismissed of itself makes it more difficult for him to obtain fresh employment.[393]

521 It is plain that the circumstances did not involve much of a process leading up to the 'abrupt' dismissal of the plaintiff. In that sense, it is unlike both most of the cases to which I have earlier referred and the circumstances of the present case.

522 The 'principle' in Addis is also seemingly directed to a disentitlement to certain heads of damages arising from a breach of contract rather than, strictly, whether no duty of care might be said to arise. As I have indicated, however, it is not easy to see how if such damages may not be awarded for a breach of contract, that can be avoided via reliance upon a cause of action in negligence.

523 Further, nothing in Addis may stand directly to prevent a claim being made in respect of treatment by an employer prior to the termination of the contract. Prior to the termination of the services of an employee, it is quite common for there to be a disciplinary meeting at which the 'concerns' of the employer are ventilated and the employee has an opportunity to explain their side of the story. At that point, the services of the employee have not been terminated and might not ever be terminated. Putting Paige, Govier and Potter to one side, it is not obvious to me that the principle in Addis should necessarily operate to prevent such an employee from subsequently claiming in respect of a duty of the employer to take reasonable care in the conduct of such a meeting.

524 In the present case, of course, much of the putative negligence of the defendant preceded the final act of termination, albeit that it was the subsequent termination that was at least a very significant part of the wellspring of the plaintiff's subsequent injury, loss and damage. However, that act was really made inevitable by the earlier putative negligence of which I have spoken.

525 It follows from the above that, at least to me, there must be doubts about the extent to which the authorities and principles to which I have referred, particularly those arising from Paige and Addis, might be said wholly to foreclose any possible claim in negligence.

526 That said, the expression of the principle by Ashley J in Aldersea - which embraces both the 'Australian common law' and claims for 'damages for personal injury resulting from wrongful termination of a contract of employment'[394] - does seem to me presently to constitute an obstacle to at least a significant part of the most causally powerful events at the centre of the plaintiff's claim. In that connection, his Honour notes that the 'very few cases which have yielded a contrary result appear to be at odds with the principle'.[395] As I have noted, Aldersea is also a decision of this Court.

527 Further, the kernel of the reasoning in Paige and Govier has very recently been confirmed by the Queensland Court of Appeal in Potter and, as I have noted, the Court there plainly considered a duty of the relevant kind to be incompatible with the exercise of a suspension power in connection with disciplinary procedures whether or not the employment of the employee was ultimately terminated.

528 At present I am unable to see that the present case is sufficiently distinguishable from the principles to which I have referred, or that it really may be said that the principle stated in Aldersea is wrong.

529 That being the case, I feel that I must follow Aldersea and accept the submission of the defendant that the duty of care sought to be relied upon by the plaintiff is not presently recognised by the common law.

530 Notwithstanding the above, I am conscious that the heart of the present circumstances comprised a relationship between the parties and sequence of events by which -

(a) the plaintiff was told, by the stand down letter, that he faced disciplinary action for identified claimed 'serious misconduct';

(b) the stand down letter plainly represented that the subsequent meeting would be conducted by reference to clause 47.5 of the Vision EA and, implicitly, the defendant's disciplinary procedure;

(c) clause 47.5, which was appended to the stand down letter, represented that the defendant would advise the plaintiff of 'the employer's concerns' and that the 'due process meeting' would include discussion of those concerns;

(d) the disciplinary procedure, which was also appended, made practically the same representation;

(e) in fact, the stand down letter did not advise the plaintiff of the whole of the employer's concerns (which included the allegations of a pattern of aggression and untenable excuse making) and nor was the plaintiff given an opportunity to address those concerns at the meeting (as he was never told about them);

(f) indeed, he prepared to address the only allegations of which he was advised and, in so doing, was taken to be confirming those of which he was not advised;

(g) those features led to the later decision of Mr Gow-Hills that the plaintiff's employment should be terminated; and

(h) consequently, the plaintiff suffered injury including very serious psychiatric injury.

531 In such circumstances, at least in any normative sense, I would have thought that the stand down letter was negligently made.[396] Indeed, subject to anything that might relevantly be said about Paige, Govier, Potter, Addis, Baltic Shipping and Aldersea, I would have thought that a cause of action in deceit may well be unanswerable.[397]

532 In the end, however, the issues that I have identified need not finally be determined. Among other things, it is unnecessary to do so.

533 If I am wrong about the answer to the question of whether the claimed duty of care ought be taken to arise, I note that the defendant also says that it was not breached or a cause of the plaintiff's injury, loss and damage.

534 It should be evident from what I have already said in connection with the contract claim that if the claimed duty of care arises, I would accept that it was breached.

535 In respect of causation, the defendant contended that the plaintiff established no 'coherent counterfactual' that would have avoided the plaintiff's injury, particularly serious psychiatric illness.[398]

536 It will be evident from what I have earlier said that if a proper process had been undertaken, it is most likely that -

(a) Ms Hauser would not have made the secret slurs against the plaintiff - as they were insubstantial;

(b) consequently, those slurs would not have subsequently prejudiced the conduct of the meeting on 26 May 2015 involving the plaintiff or led to his subsequent dismissal;

(c) even if any such slurs had been advanced, the plaintiff would have been notified of those allegations and so had an opportunity to expose their essentially insubstantial nature;

(d) a proper consideration of the events involving Ms Trch and the plaintiff would have exposed that they occurred in the middle of the night and involved persons likely to have been affected by stress, lack of sleep, having been woken from sleep and/or illness and probably not any element of harassment or bullying;

(e) in that event, the defendant may have accepted the plaintiff's assurances in respect of the matter, including his apology,[399] and told him that the matter was finalised - which is essentially what occurred when the plaintiff had previously been the subject of process in February 2010;[400]

(f) alternatively, and at worst, the defendant would have issued the plaintiff with a warning and perhaps given him some form of guidance or counselling - much as occurred in respect of the incident concerning the plaintiff's computer misuse in about March 2008;[401]

(g) in neither event would the defendant have concluded that the plaintiff was guilty of 'serious misconduct' and summarily terminated his employment;

(h) nor would the later complaint concerning the 17 year old client in Ballarat have led to any summary termination of the plaintiff's employment; and

(i) the plaintiff would not have gone on to develop the serious psychiatric illness from which he presently suffers.

537 In the latter regard, the defendant submitted that -

(a) the plaintiff was pre-disposed to paranoid and obsessive personality traits;

(b) consequently, 'any process that resulted in a finding of wrongdoing ... would have been unacceptable to him' and 'nothing short of complete exoneration would have satisfied' him; and

(c) it follows that psychiatric injury would only have been avoided 'if the plaintiff had been completely vindicated' which was 'not a possible outcome of any form of action or inaction on the part of the defendant'.[402]

538 No aspect of those submissions references any evidence given by the plaintiff. Nor was it suggested to him in evidence that he would have been content with nothing short of 'complete exoneration'.

539 In truth, the submission does not fit with the picture of the plaintiff prior to injury as it emerged in evidence, particularly via the evidence of his mother and sister. For that matter, it did not ring true with the evidence of the various witnesses of the defendant who said that they had no reason to suspect that the plaintiff was psychiatrically vulnerable prior to the termination of his employment.

540 The report of Mr Walker did not address such a scenario and nor was any such scenario put to any of the medical witnesses who gave evidence. At best, it might be said to be derived from one of the reports of Associate Professor Doherty - which is referenced in the defendant's submissions - but not the subsequent oral evidence of Associate Professor Doherty in which he confirmed that any such personality traits were 'quiescent' until provoked by the events relating to the termination of the plaintiff's employment.[403]

541 Most importantly, the submission does not sit with the evidence which the plaintiff gave concerning -

(a) the issue of computer misuse in about March 2008;

(b) the issue of alleged misconduct in February 2010;

(c) the handling of his complaint concerning another employee in 2011-2012; and

(d) the handling of his later complaint concerning Ms Hauser's 'micromanagement' in about July 2014.

542 In respect of none of those events is it evident that the plaintiff unreasonably demanded 'complete exoneration' or acceptance of his claims. Indeed, in respect of the complaint involving Ms Hauser, the plaintiff emailed Mr Garwood in quite reasonable tones entirely contrary to the pre-injury picture of the plaintiff that the defendant sought to advance in submissions.[404]

543 Further, it is not evident that any of those events caused the plaintiff to fall into a psychiatric heap of the kind that has been precipitated by the events surrounding the termination of his employment. In each instance, he seems to have continued to work full time and competently.

544 It follows that I reject the defendant's submission. In my view, if the defendant had acted in the manner that I have suggested - which seems to me to have been most likely if the matters relating to Ms Trch and the plaintiff had been handled sensitively, professionally and with an open mind, as they should have been - then it is more likely than not that the plaintiff would have avoided any relevant psychiatric injury.

545 The issue of damages arises only in respect of the defendant's breach of the plaintiff's contract of employment.

546 The defendant contends that damages are not measured 'at large' and says -

Damages are limited to what would have happened but for the wrongful summary dismissal, which would have been termination on the provision of 1 month's written notice (or payment in lieu) for any reason. That is, the defendant is entitled to the presumption that it would have performed termination in accordance with the contractual term.[405]

547 In that regard, the defendant relies upon the termination clause in the contract of employment.[406] It describes it as a right to terminate 'for any reason on notice' and also refers to a right to terminate summarily without notice for engaging in serious misconduct.[407]

548 It will be evident from what I have already said that if the defendant had complied with the terms of the contract and, indeed, acted at all reasonably, the plaintiff would not have been summarily dismissed.

549 Further, while the contract of employment confers a right upon either party to terminate the contract by giving a month's written notice, there would realistically need to be a reason to suspect that such notice would ever have been given. Absent the events constituting a breach of contract by the defendant, no such reason was demonstrated in the evidence. At best, the issue is a hypothetical one relevant to the assessment of vicissitudes (and so is taken into account in respect of that assessment).[408]

550 It follows that the submission that damages must be limited by reference to the termination clause in the contract must be rejected.

551 In somewhat the same vein, the defendant submits that, in effect, the plaintiff's employment would have been terminated anyway. That submission seems to have been sought to be advanced by reference to the subsequently received complaint of an incident involving a 17 year old client in Ballarat.[409] It will be evident from what I have earlier said that the submission must be rejected.

552 The defendant also contends that damages in respect of the psychiatric and other injury suffered by the plaintiff are too 'remote'. That is, whilst such damage may be accepted as having been caused by the defendant's breach of contract, it is not of a kind that was within the reasonable contemplation of the parties at the time at which the contract was made.

(a) the purpose of the exercise is to set a limit upon the consequences for which the defendant ought pay;

(b) it will be sufficient if the damage was of a kind that was a serious possibility or not unlikely occurrence;

(c) the parties need not have contemplated the precise events giving rise to the loss or damage, or its degree or extent;

(d) however, the parties 'must contemplate both the general nature of the loss or damage and the general manner of its occurrence'.[410]

554 In that general connection, in European Bank Ltd v Evans,[411] the High Court stated -

[12] As Toohey J remarked in The Commonwealth v Amann Aviation Pty Ltd, the rule in Hadley v Baxendale does not detract from what was said in Robinson v Harman. The rule is concerned with the question of remoteness and marks out the limits of the heads of damage for which the plaintiff is entitled to receive compensation. In the same case, McHugh J said of Hadley v Baxendale that the rule is a limit on, rather than a ground of, liability, marking out the boundary of the liability for loss or damage caused by a breach of contract.

[13] The formulation of the rule in Hadley v Baxendale states the entitlement of the plaintiff to recover such damages as arise naturally, that is, according to the usual course of things, from the breach of contract, or such damages as may reasonably be supposed to have been in the contemplation of both parties concerned at the time they made the contract as the probable result of the breach. In The Commonwealth v Amann Aviation Pty Ltd Mason CJ and Dawson J, with reference to the speeches of Lord Reid and Lord Upjohn in Koufos v C Czarnikow Ltd (The Heron II), said that the two limbs of the rule in Hadley v Baxendale represent the statement of a single principle and that the application of that principle may depend on the degree of relevant knowledge possessed by the defendant in the particular case. Lord Reid had used the expression "on the cards".

... if the plaintiff cannot satisfy the Koehler foreseeability requirements, as the defendant submits he cannot, the plaintiff cannot possibly satisfy the higher threshold requirements of the remoteness principle in contract.[412]

556 As I have already noted, the plaintiff satisfies what the defendant refers to as 'the Koehler foreseeability requirements'. Nonetheless, great care should be taken with a submission of the kind identified. In most cases, reasonable foreseeability of the risk of psychiatric injury to an employee will not be assessed at the point at which the contract of employment is made, and the present case is no exception. Further, the test for remoteness of damage in tort[413] - which is likely to be the foundation for the defendant's submission - is not precisely the same as the test for reasonable foreseeability of the risk of psychiatric injury.

557 In any event, the present issue is whether the personal injury damages claimed by the plaintiff are beyond that which the defendant ought pay.

558 In that regard, I note that in Nikolich v Goldman Sachs JB Were Services Pty Ltd at first instance,[414] Wilcox J observed that damages for personal injury constituted by psychiatric illness could be recovered in an action for breach of contract.[415]

559 In respect of the question of remoteness of damage, his Honour considered damages for personal injury comprised of psychiatric illness to have been within the contemplation of the parties because the relevant contractual obligations had been 'intended to provide peace of mind' and, consequently, it must have been contemplated that if those obligations were not fulfilled the employee 'might become upset, stressed and disturbed'.[416] In that regard, the case concerned a 'mental disability' of the very kind that the promises made in the incorporated documents 'were designed to prevent'.[417]

560 On appeal, the contention that his Honour had thereby erred was rejected and, indeed, the passage to which I have immediately referred was specifically extracted and implicitly endorsed.[418]

561 In the present instance, the submissions of the defendant addressed the decisions in Nikolich at some length and concluded that -

... it could not be said that the terms of the policies and procedures that the plaintiff alleges were breached, if they are terms of the contract, were intended to provide peace of mind to existing or prospective employees of Vision Australia. The purpose of the disciplinary policy and procedure is not to address the health and safety of employees, but rather to address issues relating to alleged problematic employee behaviour or conduct.[419]

562 It was accordingly submitted that the Nikolich decisions 'do not assist the plaintiff'.[420]

563 It may be accepted that the circumstances in Nikolich are not in every respect identical to the present. However, it does not follow that aspects of the reasoning in Nikolich are not of assistance. Nor, for that matter, does it follow that the present circumstances should not be found to be within the underlying principles to which I have referred merely because they are in some respects different to the circumstances in Nikolich.

564 I do not accept the defendant's characterisation of its disciplinary policy and procedures as unrelated to health and safety and as addressing only issues 'relating to alleged problematic employee behaviour'.

565 As I have earlier indicated, those procedures relevantly contain terms of an obligatory kind that would stand to assure any employee that any disciplinary process that they might face will be fairly conducted. In circumstances where the evidence plainly identified that distress and even psychiatric illness can be a possible albeit perhaps uncommon reaction to termination of employment and, indeed, the defendant anticipated such reactions by providing for counselling and support to be available, it could not be said that such procedures are entirely unrelated to considerations of health and safety.

566 In any event, whatever might be said concerning the defendant's policy and procedures incorporated into the plaintiff's contract of employment, the present issue concerns the reasonable contemplation of the parties at the time at which the contract was made.

(a) the contract of employment referred specifically to a risk of termination of the contract upon one month's notice;

(b) immediately thereafter, the contract serves to reassure the employee that the employment conditions will be 'in accordance with regulatory requirements and Vision Australia Policies and Procedures' and, in that connection, refers to the theoretical prospect of 'disciplinary action' following breaches of those regulatory requirements, policies and procedures;

(c) accordingly, the parties must reasonably have had in contemplation that the regulatory requirements, policies and procedures would operate to ensure the fairness of any such process for the benefit and reassurance of both parties;

(d) in that context, of course, the evidence suggested that the risk that termination of employment could result in distress and even psychiatric illness was an acknowledged possibility - certainly by the relevant witnesses at trial, and there is nothing to suggest that the position would have been any different in September 2006; and

(e) the evidence also suggested that the defendant anticipated that risk by providing access to counselling and support - and, again, there was nothing to suggest that the position would have been any different in September 2006.

568 It follows, in my view, that at the time at which the contract was made the parties ought be taken reasonably to have had in contemplation that distress and potential psychiatric illness was a risk that was a 'serious possibility', 'not unlikely' or 'on the cards' in the event that the protective processes directly contemplated by the terms of the contract were not followed and the plaintiff's employment was therefore wrongly terminated. Consequently, the plaintiff's claim for damages arising from his psychiatric and other injury are not 'too remote'.

569 That brings me to the considerations relevant to an assessment of the plaintiff's entitlement to damages. In Nikolich, that was done by reference to ordinary common law principles, and in the present instance it was not suggested that any different path should be followed (assuming that the issues addressed above do not stand as any obstacle).

570 I have earlier mentioned the effect of the termination upon the plaintiff and broadly outlined both his presentation and the nature of the medical treatment that he has received and which is otherwise anticipated. I will not repeat all of those observations: the position is that the plaintiff is a relatively young man who has been plunged into a chronic and serious psychiatric state, together with aggravation of his underlying ulcerative colitis, as a consequence of the manner in which he was treated by the defendant. It was not seriously suggested that the plaintiff is presently in any condition to work; nor, really, that he has been in any condition to work at least since 2018.

571 There was, however, a sequence of interrelated submissions advanced by the defendant, namely that -

(a) the plaintiff's psychiatric state 'was not particularly severe until he commenced this legal proceeding in about 2018';[421]

(b) the plaintiff's condition has or is likely in the future to result more from his inherently 'brittle' nature and underlying 'personality traits' than any psychiatric illness precipitated by the manner in which he was treated by the defendant;[422]

(c) the plaintiff has been 'obsessive' about the litigation; and

(d) in that regard, there is a 'high probability of significant improvement, if not resolution, of the major depressive disorder upon the successful conclusion of this case'.[423]

572 To some extent I have already touched on some of these points. Most or all of them are based in a particularly harsh assessment of the plaintiff's presentation and motivations - which I do not accept - together with some elements of the opinions of Associate Professor Doherty.

573 In connection with the submission that the condition of the plaintiff was 'not particularly severe' until he commenced the litigation in August 2018, the defendant references certain tendered records as well as the report of Dr Entwisle in December 2017.[424] At that time, Dr Entwisle was of the view that the plaintiff had major depressive illness 'in partial remission' and that he had a capacity for suitable employment.[425]

574 The weight of the evidence, however - particularly that of the psychological and psychiatric treaters at the time, Mr Ellery and Dr Greenbaum - reveals the effect upon the plaintiff and his psychiatric condition from shortly after his termination to have been relatively consistently observed to have been both severe and disabling.

575 In that regard, albeit that the following is by no means a complete recitation of the relevant chronology, I note that -

(a) the plaintiff described the effect of the termination upon him as 'catastrophic'[426] and, as I have earlier noted, the evidence of his mother and sister spoke to the subsequent and significant change in him;

(b) Mr Nunns said that the termination had 'caused a massive amount of distress from Adam';[427]

(c) the plaintiff attended Mr Walker, clinical psychologist, immediately after his termination and evidently referred to having been 'fired' and Mr Walker noted 'very stressful 2 weeks';[428]

(d) on 7 July 2015, Mr Walker reported that 'the recent dismissal from Vision Australia has been associated with a large increase in worry, anxiety and insomnia, and subsequent financial stress';[429]

(e) the plaintiff was referred to Mr Ellery, clinical psychologist, in September 2015, and during that same month, Mr Ellery reported that the plaintiff presented with diagnoses of major depressive disorder and adjustment disorder with mixed anxiety and depressed mood, and listed the following effects reported and observed -

• Numbness and shock

• Depressed moods and thought patterns

• Pervasive and deeply negative thinking

• Insomnia

• Extreme anxiety and constant worry

• Loss of libido

• Significant weight loss

• Extreme emotionality including anger, despair, hurt, grief and fear
• Loss of participation in and pleasure from daily and previously enjoyable activities and personal pursuits[430]

(f) at that time, Mr Ellery was of the view that the plaintiff had no capacity for pre-injury duties and was not able to perform any other duties - which was, in his opinion, likely to continue for the foreseeable future;

(g) as I have earlier noted, the plaintiff attended Mr Ellery on over 150 occasions 'at somewhere between two to three week intervals, fairly consistently across the time' between September 2015 and January 2021;[431]

(h) on 8 February 2017, Mr Ellery reported that the plaintiff 'continues to suffer from severe anxiety and depression' and 'incapacity to work due to the extreme physical, psychological, social and emotional effects related to the dismissal';[432]

(i) on 18 April 2017, Mr Ellery reported that the plaintiff's injury was 'profound and chronic in terms of anxiety and depression';[433]

(j) on 16 March 2018, Mr Ellery reported the plaintiff's diagnoses as being 'major depressive disorder' and 'adjustment disorder with mixed anxiety and depressed mood', a continuing incapacity for work and a guarded prognosis;[434]

(k) on 1 June 2018, Dr Greenbaum, psychiatrist, reported that he was treating the plaintiff for his 'current major depressive disorder' and, among other things, noted that 'his concentration is poor, his memory is very bad, and his interest is almost absent' and, on 14 August 2018, reported that the plaintiff was 'unable to work';[435]

(l) the present proceeding was commenced by Writ on 27 August 2018;

(m) on 3 July 2019, Mr Ellery reported that the plaintiff's 'state of chronic depression and elevated anxiety are clearly displayed' in sessions, noted the suggestion of Dr Entwisle that there had been 'partial remission' and said 'I do not observe any remission', and otherwise said that the plaintiff continued to suffer incapacity to work and that he had observed 'no progress';[436]

(n) on 5 July 2019, Dr Greenbaum reported that his opinion 'had not changed substantially from the opinion expressed in my letter of 14/8/2018' and, shortly thereafter, on 11 July 2019, reported that the plaintiff had no capacity to 'engage in any of his pre-injury skills or duties' and that 'he is quite totally impaired in his social functioning';[437]

(o) on 11 February 2020, Dr Greenbaum reported diagnoses of major depressive disorder and 'situationary reaction' with anger, depression and anxiety, and stated that he did not believe the plaintiff had any capacity for suitable employment and considered his prognosis to be poor;[438] and

(p) on the same day, Mr Ellery reported that the plaintiff continued to be treated 'for extreme depression, anxiety and PTSD against a background of ongoing litigation and medical reviews', that he had still not observed 'any sustained remission' and that no progress had been observed over the past six months.[439]

576 In evidence in chief, Dr Greenbaum was referred to the period from May 2018 to September 2020 and stated -

I thought that in the initial period over several months the presentation of his mood state in my sessions varied, there were times that he was less distressed than others, whenever there had been a need for him to be assessed by various tribunals or other people, he was distraught, other times he was really flat and not showing much motivation or drive, and was generally, I guess, apathetic and was unable to describe any ambition or what he was hoping for in terms of improving his life.[440]

577 Dr Greenbaum later said that when he had ceased to treat the plaintiff (in September 2020) 'he was still essentially showing a similar symptom profile as he showed when I first met him'.[441] He did not believe that the plaintiff could have worked throughout the period in which Dr Greenbaum had treated him.[442]

578 As to Mr Ellery, he was asked in cross-examination whether the plaintiff had been 'more buoyant' after the Magistrates' Court hearing in March 2017, to which he initially replied 'buoyant, um - - -' and then said 'I can't fully recall, but it would be consistent with such an achievement'.[443]

579 Mr Ellery also confirmed that he had a goal for the plaintiff to return to 'some sort of graduated return-to-work' throughout 'the whole treatment period'.[444]

580 When asked whether 'the fact of ongoing proceedings' had affected his approach with the plaintiff, Mr Ellery replied 'on balance, no'.[445] He also rejected a suggestion that he had been 'guarded' about what he had put in writing.[446]

581 In re-examination, Mr Ellery said that his reports had revealed 'a little bit of variation' over the years, but 'not much progress in terms of any return to work'. He said that -

The rehabilitation seemed also stalled by a number of factors, his general health being the first one, family developments, and again, the legal and similar proceedings.[447]

582 It was not suggested to Mr Ellery, or Dr Greenbaum, that the plaintiff's condition was 'not particularly severe' until he commenced the present litigation in August 2018. Indeed, the premise of each cross-examination seemed to be that the plaintiff's condition had been sponsored by involvement in litigation and similar proceedings throughout each relevant period.

583 In any event, it will be evident that Mr Ellery and Dr Greenbaum are treaters who saw the plaintiff on multiple occasions and over respective periods of years. Mr Ellery, in particular, considered the suggestion of a period of remission and rejected it. Both saw the plaintiff before and after the commencement of the present litigation. Their diagnoses throughout the period are expressed in terms that are essentially consistent.[448] That said, each acknowledged 'a little bit of variation'. Given the lengths of the respective periods involved, I do not find such an observation surprising.

584 In light of the above, I reject the submission that the plaintiff's condition was 'not particularly severe' until he commenced the present litigation in August 2018.

585 Allied with the above was the submission that the plaintiff had been obsessive about the litigation and that his condition would very likely improve, if not resolve, when this case is over. That submission carried within it the contention that after the litigation, the plaintiff's major depressive condition would abate, leaving him affected by underlying 'personality traits' described in the written submissions as being 'obsessive and paranoid'.

586 Broadly speaking, that combination of submissions arose out of the evidence of Associate Professor Doherty, who provided three reports and also gave oral evidence.

587 On 22 December 2018, Associate Professor Doherty reported that -

(a) his diagnosis for the plaintiff was major depressive disorder together with a 'long standing anxiety problem, and possibly an anxiety disorder pre-existing the May 2015 events';

(b) the prognosis should be considered guarded, as the plaintiff's psychiatric problems 'are underpinned by some poorly adaptive personality traits'; and

(c) the plaintiff was incapacitated for work which 'will continue and only be relieved after resolution of the legal proceedings'.[449]

588 On 12 March 2020, Associate Professor Doherty reported that the diagnosis remained that of a major depressive disorder underpinned by 'deteriorated personality' involving 'obsessional and paranoid traits'. In respect of prognosis, he reported -

With regard to the natural history, the condition should have remitted under treatment by now. It has not done so. It is maintained by his sense of injustice, his obsessional fixity about seeing the legal proceedings through.

The individual forecast for outcome is not favourable. He has not worked for about five years. He is in long-term psychological and psychiatric treatment. His social support base has fallen away. His skill base is deteriorated.

He will need ongoing treatment for the foreseeable future by the psychiatrist and psychologist. The completion of legal proceedings, should they go his way, may assist him to move forward.[450]

589 On 12 March 2022, Associate Professor Doherty referred to a history of conflict with treaters and recorded that the plaintiff 'feels aggrieved and is resentful and is in conflict frequently'. In that connection, he expressed the view that -

He presents as a psychologically troubled person caught up and trapped in his sense of aggrievement, pre-occupied about the unfairness of what has happened to him. He moves from conflict to conflict with a progressively narrower of social and psychological functioning. The conflicts have to do with his perception as to how he is treated by others, and his heightened sensitivity to nuances and slights to his sense of his capacity, competence, and reputation.[451]

590 As to diagnosis, Associate Professor Doherty stated -

From a clinical standpoint, the diagnosis is that of a major depressive disorder.

There has been a significant deterioration in his social and psychological and personality functioning. There are more than the usual number of paranoid and obsessional personality traits in his personality make-up. Such traits make it more difficult for the worker to move on, given up or lessen his view of being unfairly treated.

The personality traits, not the effects of the major depressive disorder, are the current maintaining factors, and the cause for his difficulties in personal relationships and the cause of his social avoidance.[452]

591 Finally, as to prognosis, Associate Professor Doherty reported -

The prognosis is most unfavourable. There has been no progress made. He is [now] entrenched in a threatening world of his making and will find it very difficult to return to normal activities, appropriate community adjustment and also gainful employment.[453]

592 It will be evident that the emphasis in the written opinions of Associate Professor Doherty has evolved. At least part of it now seems to be related to a history of recent 'conflicts', particularly in respect of Mr Ellery and Dr Greenbaum. Those matters of history were not explored in the oral evidence of either of those witnesses.

593 In any event, in evidence in chief Associate Professor Doherty stated that -

(a) the plaintiff has 'more paranoid traits than obsessionality traits';[454]

(b) the plaintiff 'will not be able to move forward until the legal proceedings are finished';[455]

(c) the plaintiff has a major depressive disorder 'on the surface', but his presentation is to be explained by 'the obsessionality and paranoid traits' that involve a feeling of injustice and constitute an underlying 'disturbed personality';[456]

(d) in the normal course of events, he would have expected a remission of the major depressive disorder, but it is being maintained or fed by the plaintiff's feeling of having been treated unfairly;[457] and

(e) 'his paranoid traits make it very difficult to maintain relationships ... he'll feel injustice and so on'.[458]

594 In cross-examination, Associate Professor Doherty confirmed that -

(a) the plaintiff has no capacity for work and is not feigning illness;[459]

(b) the unlawful termination had activated 'quiescent aspects of his personality' and created pervasive problems;[460]

(c) the plaintiff is severely psychiatrically impaired;[461]

(d) if the plaintiff's account of his pre-injury state were accepted, 'there's been a very obvious and significant change in his demeanour and his way of relating and in his behaviour' as a consequence of the 'work events';[462] and

(e) the plaintiff's clinical presentation is 'not typical' of treatment resistant depression.[463]

595 In re-examination, Associate Professor Doherty addressed the treatment of the plaintiff's 'personality traits' and stated -

Well, they're very hard to treat. They're extremely hard to treat, both obsessionality and paranoid traits, it's difficult to engage to form rapport with the person because of their fixity of their belief and so on. And what happened with Dr Greenbaum and Mr Ellery is typical of a person with paranoid and obsessional traits, things come to a clash after a while, and so on, so the approach would be sort of psycho therapeutic, but it's those traits have poor prognosis, poor forecast for improvement, they tend to stick on.[464]

596 Associate Professor Doherty confirmed that, in his opinion, treatment in the nature of trans-cranial magnetic stimulation or electro-convulsive therapy was unlikely to be helpful 'in any way shape or form'. It was evident that he would not recommend ECT for 'a person with paranoid ideas and paranoid traits'.[465]

597 As to prognosis in the event that the plaintiff is 'successful' in the proceeding, Associate Professor Doherty stated -

He'll still have his paranoid and obsessional traits, though he'll feel a sense of justice, righteousness, and he'll move on with a bit more cheer, a bit more sort of enjoyment, he will be able to sort of get on with life, he'll still remain with those paranoid and obsessional traits, but he'll be able to sort of do more than he's doing at the present time.[466]

he would get back to having an employment capacity, I'm not too sure how long it would take, it would depend on the outcome, but I think he would be able to get back, he would maintain his paranoid and obsessional traits, but the over pinning, if you like, depressive state would evaporate very quickly.[467]

599 Associate Professor Doherty thought that it was 'very difficult' to say when it would be that the plaintiff might regain an employment capacity; he thought that it would depend 'on a whole number of factors'. He ultimately ventured 'maybe within six months, maybe'.[468]

600 As to the notion of 'success in the litigation', Associate Professor Doherty confirmed that there were 'many variables and it's hard to estimate'. He said -

I mean it could well be that he's disappointed with the - if he is compensated, the amount of money, or the charges made against him by his legal representatives, et cetera, there could be a whole range of reasons why though the judgment is favourable, he's critical of certain aspects of it, and so on.[469]

601 It will be evident that it was not wholly clear on the face of Associate Professor Doherty's evidence how it could be that the plaintiff's depressive state 'would evaporate' quickly in a setting in which the identified personality traits - that had been provoked by the 'work events' - were said to be both maintaining the major depressive disorder and extremely hard to treat.

602 It was also not obvious how it should be that success in the present litigation should precipitate a 'high probability of significant improvement, if not resolution, of the major depressive disorder' when, as I have earlier indicated, the plaintiff continues to suffer very disabling psychiatric symptoms even though he has previously succeeded in a proceeding before the Magistrates' Court in 2017 and, indeed, before a medical panel in 2020.[470]

603 In the end, however, it will be evident that the evidence of Associate Professor Doherty ultimately did not provide any real support for such a submission. In particular -

(a) inasmuch as the defendant seeks to rely upon 'personality traits', Associate Professor Doherty confirmed that they were quiescent until the 'work events' and are now very difficult to treat;

(b) as I have indicated, the 'personality traits' are said to 'feed' and 'maintain' the major depressive disorder;

(c) the plaintiff would 'still have' those traits even after the litigation is over;

(d) at best, if he is 'successful' in the proceeding, 'he'll be able to sort of do more' and 'would get back to having an employment capacity';

(e) however, 'success' in the proceeding involves 'many variables' and the question of when the plaintiff might regain an employment capacity is 'very difficult to answer' and 'depends on a whole number of factors'; and

(f) to the extent that Associate Professor Doherty proffered an estimate of 'maybe within six months, maybe', that was necessarily tentative and implicitly depended upon all of the factors falling in a favourable direction.

604 I should, of course, add that Associate Professor Doherty was not the only psychologist or psychiatrist who gave evidence in respect of the 'obsessionality' of the plaintiff, the role of the litigation and the future prognosis of the plaintiff's condition.

605 In that regard, Mr Ellery was asked whether the plaintiff had been 'obsessed and blocked' because of 'the legal proceedings' and replied -

Obsessed and blocked? Um, I don't know that I would use those words. But I think I would understand how you convey them. Obsessed? Ah, concerned and distracted by and worried about, and I think I've even put that into a report. Blocked? Delayed or set back, yes, my reports indicate that they have slowed or retarded his progress to recovery.[471]

606 Mr Ellery later explained that it had been difficult for the plaintiff to 'start recovery until the legal proceedings had finished' because they 'featured into his identity and status and ability to be functional'. Mr Ellery considered that to fit 'very directly' within the plaintiff's diagnosed condition and said that -

It's very difficult for people to step and progress towards goals outside those conditions when they're very heavily affected by those conditions and other health issues that usually accompany them. In Adam's case including UC, ulcerative colitis.[472]

607 Dr Greenbaum explained the obsessionality of the plaintiff as follows -

I believe that that - as a result of which he was let go from his job, and I believe that that was not able to be validated, but he was never given the job back, and he felt distraught, outraged, angry, depressed, and was obsessed with the wrong that had been done [to] him.[473]

608 He later explained that the plaintiff's 'outrage about how he'd been treated' had 'probably perpetuated his symptomatology'.[474]

609 In cross-examination, Dr Greenbaum confirmed that the legal proceedings would need to be resolved and 'we would need to review the options after that'.[475]

610 As to 'paranoid personality traits', Dr Greenbaum said -

I didn't see evidence in the sessions that I had with him.[476]

611 Mr Vanderputt, the current treating psychologist, stated that -

(a) the plaintiff has a 'severe mistrust schema towards others';[477]

(b) his assessment of the plaintiff's condition had revealed 'extremely severe disturbance ... compared to the general population';[478] and

(c) the plaintiff has feelings of 'lack of confidence and competence and a general sense of helplessness'.[479]

612 When asked in cross-examination about the legal proceedings, Mr Vanderputt confirmed that it had been a significant focus and preoccupation. He explained that anyone would be 'pretty preoccupied by something that's consuming the majority of their life'.[480]

613 He confirmed that EMDR treatment was unlikely to be effective in such a setting and that he was reluctant to focus on 'the trauma incident' until the court case was finished.[481]

614 Mr Vanderputt was of the view that the plaintiff was 'continuing to experience treatment resistant depression' and spoke about TMS and ECT.[482] As to the conclusion of the litigation, he stated -

I think at this stage it's also pretty clear, following the court case, I think that being such a massive weight and everything, quite rightly contingent on the outcome of this as well, that will help to provide a bit more evidence, yes, depending on the outcome, it's absolutely going to influence what basically we talk about and the work that we do.[483]

615 In re-examination, Mr Vanderputt considered that the plaintiff's condition would 'remain for some time post the court case'. In that connection, he stated -

it's how long is a piece of string how long that will remain there, but major depressive disorders due to trauma just don't go away.[484]

616 As to the likely course of the plaintiff's condition, Mr Vanderputt explained further that -

his condition will, it will persist, so it's clear we need to engage in treatment for that, and through or sessions there has, in terms of the EMDR managing some of those schema, trust schema, pessimism schema as well, so those things I believe are enduring and won't necessarily change depending on the outcome. Should he win, then that's going to be quite different in terms of his lifestyle and the behavioural activation that we'd like him to engage in versus should he lose, where that would also have a pretty significant consequence. So there's some things that are almost static in terms of his mental health and certain treatments for that, but there will be some contentions based on the outcome that we'll need to address when we know.[485]

617 I have earlier referred to some of the evidence given by the present treating psychiatrist, Dr Lewis. In his view, the plaintiff has treatment resistant depression that is 'quite entrenched' and the duration of that depression is 'a negative prognostic factor'.[486] In respect to future employment capacity, he stated -

I cannot envisage Mr Elisha having any capacity for employment for the foreseeable future. He's been severely incapacitated, in almost all aspects of daily living in the context of this chronic severe depression. He presents to me as an individual - the majority of his psychological efforts are simply geared towards managing his daily living, he presents as an individual with very poor self-care, and self-neglect, from my understanding his dentition is very poor due to not brushing his teeth because of poor motivation, he frequently doesn't shower, spends significant periods of time in bed, he's socially isolated, he's an individual that requires significant support from family, he's functionally quite disabled.[487]

618 In cross-examination, Dr Lewis was asked whether 'genuine focus' on recovery would not occur until after the litigation is over and replied -

I've looked after many individuals, that were going through a compensation scheme with significant depressive conditions just like Mr Elisha who have recovered well when they are committed to their treatment, as he has, so I think it's a factor, but his determination to recover is indicative of someone who is motivated primarily by a wish to regain psychological health and restore functioning, it doesn't seem to me at all driven by compensation factors. However, I think anyone going through the compensation scheme such as this one would, of course, find it additionally quite stressful. I think he's an individual who's lost an enormous amount of control, and to the extent that he feels out of control for the compensation scheme such as this, I think it has probably fuelled some of his anxiety and distress, definitely.[488]

619 Dr Lewis considered the plaintiff's 'very, very significant underlying biological factors underpinning his severe major depression' to 'significantly overshadow any potential benefit that would follow the cessation of the litigation'.[489]

620 In re-examination, Dr Lewis explained that he had changed his thinking concerning treatment - away from TMS and towards ECT, for which WorkCover funding had been obtained - as a consequence of the failure of the plaintiff to respond 'to multiple anti-depressants' and the fact that an inpatient admission to the Melbourne Clinic (in January 2022) had been 'unhelpful and had not resulted in any improvement in his mental state'.[490]

621 I should say that Associate Professor Paoletti had also seen the plaintiff on several occasions for medico-legal purposes. In cross-examination, he was asked about the plaintiff's 'obsession' with the legal proceedings and stated -

if a person has a tendency to be ruminative and obsessive they can become very focussed on the trauma, if you like, and therefore the legal proceedings become collateral to resolving the trauma or helping with the trauma, or at least getting something of a certain satisfaction about the trauma. So being obsessed with the legal proceedings does not mean that the person is going to get better after the end of the legal proceedings necessarily, it just means that it's just another dimension of the trauma that the person has experienced in the work setting.[491]

622 As to whether the plaintiff had 'more than the usual amount of obsessional and paranoid traits', Associate Professor Paoletti replied -

The word paranoid is very loaded in psychiatry. I don't see him as being a paranoid person, but certainly some people become untrusting or circumspect about certain situation if they have been subjected to trauma, but it would be, he would be a ruminative sort of person for sure, yes, but that doesn't mean that ruminative people necessarily have that problem with, you know, of a - one way to think about personality traits is that there are adaptive and maladaptive traits, and sometimes as a result of trauma what may be an adaptive trait, which is useful in something like IT, can be a maladaptive trait if a person cannot stop ruminating.[492]

623 Associate Professor Paoletti explained that the plaintiff may be focussing on the legal proceedings because of his sense of the wrongdoing by his employer, but that did not mean that he will get better after the legal proceeding are complete. He said that sometimes people remain quite unwell after legal proceedings are over. He said 'people become stuck' and that their condition can become 'intractable'.[493]

624 In re-examination, Associate Professor Paoletti addressed the issue globally and in the following terms -

one sees people that can be very traumatised by legal proceedings, but you know, it can also be, as I said, it's a collateral, collateral, um, event in the light of other things which are happening, and I would not like to think that one can predict what would happen at the end of the legal proceedings, because of my experience with having seen people sometimes, particularly in the old days when there were more facilities for continuing to see people in the public system who had been severely traumatised or whatever or had accidents or whatever. I have seen people in my days, particularly at St Vincent's Hospital, who had remained unwell after the legal proceedings were settled. I don't know that I can say anything about predict what's going to happen with this gentleman after the legal proceedings are over.[494]

625 He thereafter confirmed that the plaintiff has 'a constellation of symptoms' which are 'notoriously difficult to help'.[495]

626 It will be evident from the above that to the limited extent that any suggestion to the effect that the plaintiff was beset by paranoid personality traits was put to any of the witnesses to whom I have referred (other than Associate Professor Doherty), it was rejected.

627 It should also be evident that in the course of the cross-examinations to which I have referred, there was no mention of Associate Professor Doherty or his theory to the effect that the plaintiff's major depressive illness was being maintained by underlying personality traits and would 'evaporate quickly' after the litigation.

628 For completeness, I should perhaps note that when asked about counsel for the defendant's suggestion that 'once this is all over and you leave this courtroom this will all be behind you', the plaintiff replied -

I say that's possibly the most ludicrous thing that came out of the defence counsel's mouth.[496]

(a) precipitated by the termination of his employment, the plaintiff has endured very severe psychiatric illness in the nature of at least major depressive disorder;

(b) whilst prior to the termination of his employment, the plaintiff had been prescribed anti-depressant medication and had commenced to see Mr Walker, clinical psychologist, his condition prior to the termination of his employment was nothing like his subsequent psychiatric condition and was not restricting either his social and other interactions or his capacity to work;

(c) absent the termination of the plaintiff's employment, the plaintiff would not likely have developed his presently severe psychiatric illness or any similar psychiatric condition;

(d) the plaintiff's condition is biological and has not been 'fed' by paranoid personality traits;

(e) to the extent that the plaintiff has been 'obsessional' about litigation (which, I might say, was not apparent in his own evidence), that has been a consequence of his psychiatric condition which is itself a consequence of the defendant's breach of contract;

(f) the symptoms of the plaintiff's psychiatric illness have been very extensive and pervasive over many years;

(g) the plaintiff has consequently been unable to work, and is likely to remain unable to work for the foreseeable future;

(h) the plaintiff has been treated extensively, which has not significantly improved his psychiatric state;

(i) after completion of the litigation, the plaintiff faces further and significant treatment for which funding has been granted, particularly ECT;

(j) 'success' in the litigation may lead to a degree of improvement in the plaintiff's condition - in that treatment may be able to be more effective;

(k) that said, the plaintiff has a very serious condition and he has been out of work and very psychiatrically disabled for a long time: the prospect that his impoverished confidence and social and other connections and capacities could be regenerated such that he would be able to successfully return to work at any time in the immediately foreseeable future seems to me to be very remote;

(l) as the plaintiff is still young and receiving treatment, there is a prospect that in the fullness of time the plaintiff's condition might improve sufficiently for him to engage in some form of work, perhaps even only part time;

(m) that said, I tend to think that it is less likely than likely - perhaps significantly less likely than likely - that the plaintiff will ever be able to return to work; and

(n) in that regard, it seems to me to be more likely that the plaintiff's psychiatric illness will continue to affect him and that he will remain totally and permanently unable to work.

630 It follows from the above that I would accept that there should be a slightly higher than usual discount for future vicissitudes and I would assess that at 30 percent.[497]

631 It will thus be evident that I cannot accept the defendant's submissions that -

(a) it would be appropriate to discount the proffered calculations in respect of future loss of earning capacity by 80 percent in order to take account of 'the small prospect that the plaintiff will not return to work';[498] and

(b) there also should be a discount for past and future vicissitudes 'in the order of 30%'.[499]

632 I should also add that I accept that the stress associated with the plaintiff's psychiatric condition has aggravated his underlying ulcerative colitis. The plaintiff contended that his claim in respect of aggravated ulcerative colitis was an 'important part' of his case.[500] That was less evident in the running of the case and the evidence in respect of it was also somewhat sketchy.[501]

633 I do not accept that the aggravation of ulcerative colitis was a major part of the plaintiff's claim - certainly not in comparison with the emphasis given in running to the psychiatric illness precipitated by the defendant's breach of contract - however, it is appropriate that some contribution to the plaintiff's pain and suffering made by aggravation of that condition should be taken into account.

634 The plaintiff submitted that damages for pain and suffering should appropriately be assessed in the range of $500,000 to $550,000.[502] By contrast, the defendant submitted that an appropriate award would be in the range of $80,000 to $100,000.[503]

635 The submission advanced on behalf of the defendant was influenced by a range of considerations, most of which I have rejected.

636 In light of the various features of the plaintiff's loss and damage to which I have referred, together with my general impressions concerning the plaintiff and the severe impact that his injuries have had upon him, damages for pain and suffering and loss of enjoyment of life should be assessed in the sum of $400,000.

637 As to loss of earning capacity, I have indicated that the plaintiff should be considered to have suffered a total loss between the termination of his employment and the date of judgment. In a practical sense, no discount of that assessment for vicissitudes is necessary.

638 The only real issue concerns future loss of earning capacity, and even then, the issues that arise are ultimately very limited.

639 In that regard, the plaintiff called Gary Allan, forensic accountant, and the defendant called Corey Plover of Cumpston Sarjeant and a Fellow of the Institute of Actuaries in Australia. Each prepared written expert reports.[504]

640 The major issue in the evidence of Mr Allan and Mr Plover concerned the calculations in respect of superannuation. Mr Plover's evidence was clear and impressive. Parts of Mr Allan's evidence seemed to be distracted by a High Court decision that was seemingly irrelevant and his evidence was also much less clear.

641 I accept the evidence and calculations of Mr Plover. For that matter, the submissions of the plaintiff seem to have anticipated that it may be appropriate to accept the calculations of Mr Plover.[505]

642 It follows that I would accept as broadly appropriate the figures presented by Mr Plover at page 8 of his report dated 15 August 2022, albeit that those figures require adjustment to the date of judgment and should also be affected by calculations for Fox v Wood, deductions and interest.

643 In any event, subject to the above, I would assess the plaintiff's entitlement to damages broadly as follows -

(a) General damages: $400,000.00

(b) Past LOEC + super: $537,236.00

(c) Future LOEC + super: $795,882.50

644 It will be evident that the plaintiff was treated appallingly by the defendant and consequently suffered very serious psychiatric injury. He was young and tertiary educated when it occurred and he most likely now faces a lifetime of psychiatric intrusion and disability.