East Coast Pipeline Pty Ltd v Workers' Compensation Regulator [2016] QIRC 101

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: East Coast Pipeline Pty Ltd v Workers' Compensation Regulator [2016] QIRC 101 PARTIES: East Coast Pipeline Pty Ltd (Appellant) v Workers' Compensation Regulator (Respondent) CASE NO: WC/2015/305 PROCEEDING: Appeal against a decision of the Workers' Compensation Regulator DELIVERED ON: 30 September 2016 HEARING DATES: 6, 7, 8 and 13 June 2016 HEARD AT: Brisbane MEMBER: Industrial Commissioner Black ORDERS: 1. The Appeal is dismissed; 2. The decision of the regulator dated 3 December 2015 is confirmed; 3. Costs are reserved. CATCHWORDS: WORKERS' COMPENSATION - APPEAL AGAINST DECISION – whether psychological injury sustained - whether employment the major contributing factor to any injury - whether decompensation causally connected with management action – whether injury arose out of or in the course of reasonable management action. CASES: Workers' Compensation and Rehabilitation Act 2003, s 32(1), s 32(5), s 550; Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42; WorkCover Queensland v Kehl (2002) 170 QGIG 93. APPEARANCES: Ms L Doust, Counsel, instructed by DSJB Workplace Mediation for the Appellant. Ms D Callaghan, Counsel, instructed by the Workers' Compensation Regulator, the Respondent. -- 1 of 32 -- 2 Decision Introduction [1] East Coast Pipeline Pty Ltd ("ECP") appeals a decision of the Workers' Compensation Regulator ("the regulator") dated 3 December 2015 in which the regulator confirmed an earlier decision of WorkCover to accept an application for compensation lodged by Mr John Anderson on 12 August 2015. The appeal to the Commission is conducted by way of a hearing de novo. [2] Anderson had been employed by ECP since January 2011. In July 2015, he was the subject of an internal investigation arising from a complaint of sexual harassment lodged by Kathleen Robinson and a complaint of bullying lodged by Scott Morris. Anderson was informed about the complaints on 23 July 2015 and asked to meet with the General Manager and the Operations Manager of ECP the following day to discuss the complaints. [3] Anderson attended on his general practitioner, Dr Whitney, prior to the meeting. In the meeting Anderson contested the validity of allegations of both sexual harassment and bullying. Anderson went home after the meeting and later in the day he was informed by email that his employment had been suspended on full pay pending the conclusion of the investigation. He never subsequently resumed work. Evidence [4] During the course of the proceedings, evidence was provided by nine witnesses. John Anderson, Dr Tucker and Dr Whitney gave evidence in support of the regulator's case while the following ECP staff gave evidence for the appellant: (i) Ben Waldron – General Manager (ii) Andrew Draper – Operations Manager (iii) Felicity Waldron – Industrial Relations Manager (iv) Karen Hall – Human Resources Manager (v) Scott Morris – Senior Estimator (vi) Kathleen Robinson – Project Controls Co-ordinator Matters for Determination [5] While the appellant conceded that Anderson was a "worker" pursuant to the relevant provisions of the Act, it did not accept that Anderson had sustained a personal injury. Further, if a finding were entered to the effect that Anderson had suffered a personal injury, it was the appellant's position that the injury did not arise out of, or in the course of, employment and the employment was not the major significant contributing factor to the injury. If the injury were deemed to fall within s 32(1) of the Act, it was the appellant's submission that it would nevertheless be removed from s 32(1), by virtue of the operation of s 32(5) of the Act. -- 2 of 32 -- 3 Personal Injury [6] The appellant's submission that Anderson had not sustained a personal injury was advanced on the basis that Anderson had fabricated a set of facts and circumstances to support a claim for workers' compensation; that any diagnosis or opinion formed by either Dr Whitney or Dr Tucker could be discounted because such opinions were inextricably linked with a fabricated version of events provided by Anderson; and that the contemporaneous documentary evidence associated with Anderson's consultation with Dr Whitney on 24 July 2015 did not support a finding that Anderson was suffering from a psychological condition caused by the allegations. [7] The potential for fabrication was also disclosed, it was submitted, in the evidence of Morris (T1-65) when he said that Anderson had suggested that a stress claim be made in retaliation for the employer's decision at the end of June 2015 not to award a pay increase, and in Anderson's insistence that the minutes of his meeting with Ben Waldron and Andrew Draper on 24 July 2015 include reference to his stressed condition. [8] In terms of the retaliatory step, Morris alleged that Anderson did not respond favourably to the ECP decision. He said that Anderson indicated that he (Morris) should do what a former ECP manager did "and go on stress leave". Anderson said that would teach ECP "for not giving us the – the increase". Morris conceded however that he did not raise Anderson’s comments with Ben Waldron during the July 2015 interviews and that he reported the alleged conversation to Felicity Waldron at some much later point in time. [9] The appellant challenged the legitimacy of any diagnosis claimed to have been made by Dr Whitney on 24 July 2015 to the effect that Anderson was suffering from a severe stress disorder. It was submitted that neither the diagnosis that Dr Whitney claimed to have made nor his evidence in the proceedings was consistent with the contemporaneous medical record of the consultation (Exhibit 81) or with the content of a letter that Dr Whitney wrote to Ben Waldron on the same day of the consultation (Exhibit 75). The inconsistencies included: (i) The medical record of the consultation did not include any note of symptoms observed, nor include any diagnosis of a specific condition; (ii) The medical record did not include any comment on Anderson's presenting demeanour, nor did it prescribe or recommend any treatment for a mental condition; (iii) The medical record did not disclose any discussion about whether Anderson was capable of attending the interview with his employer later that morning. [10] The medical record of the 24 July 2015 consultation identified the presenting problem as "Prescription(s)" and, under the heading of "History" included a very detailed commentary by Dr Whitney about workplace accusations of sexual misconduct and bullying. The entire narrative in the record is dedicated to a discussion about the allegations and there is no indication, other than the prescription detail, that Anderson had presented for reason unrelated thereto. -- 3 of 32 -- 4 [11] The appellant however advanced the proposition that there was a basis to conclude that the appellant was motivated to attend on Dr Whitney to renew prescriptions, not because of any condition caused by the allegations, and only raised the subject of the allegations in a conversational context, not a clinical context. In support of this proposition, the appellant drew attention to the fact that while three medications were prescribed as a result of the consultation, none of the medications were for the treatment of depression. Further, at least one of these medications, "Endone", had previously been prescribed on 20 June 2015 and this prescription was due for renewal twenty days later. [12] The proposition that Anderson had not sustained a personal injury has to be considered within the factual matrix associated with the stressors claimed to have caused the injury and the relevant medical evidence. [13] While the 24 July 2015 consultation may have initially been arranged to secure a prescription renewal, the appointment was ultimately used for multiple purposes including the preparation of a letter of support and, on Dr Whitney's evidence of Anderson's presenting demeanour, to treat his presenting condition. In this regard it was not unexpected that anti-depressant medication was not prescribed given that Anderson had been taking anti-depressants for some time and had received a prescription for "Lovan" (including five repeats) when he attended on Dr Whitney as recently as 26 June 2015. Given this factor and Anderson’s evidence that problems with his anti-depressant medication had been resolved around the end of May 2015, the need to review or prescribe anti-depressant medication may not have been an issue at the 24 July 2015 consultation. [14] Notwithstanding that the medical record of the consultation did not disclose that any diagnosis had been entered or that any treatment was prescribed or recommended, the record did reference Anderson's pre-existing condition; described the allegations; stated that Anderson had no knowledge of the behaviour upon which the allegations were based; surfaced a sense of confusion on Anderson's part about why he had been betrayed by "good workmates", and noted Anderson's concern that his employer may use the allegations to sever his work contract without any compensation. These factors could reasonably have been expected to have contributed to anxiety and an increased level of stress. [15] At the end of the narrative in the medical record, Dr Whitney had recorded that he was "happy to write a letter". This extract presumably refers to the letter that found its way into the evidence as Exhibit 75. While the letter generally replicates the sentiments included in the medical record, it did allude to Anderson's condition on the day in stating that "when John returned home after being told of the accusations, he immediately told his wife who is now distraught. Both are now very upset and have come to see me today". [16] Dr Whitney's evidence in the proceedings about the 24 July 2014 consultation was to the effect that the consultation commenced at 7.30am; that the consultation lasted between 30 minutes and 60 minutes; and that Anderson presented in a very distressed condition. Dr Whitney said that Anderson was agitated, was experiencing difficulty in expressing himself, was anxious and he was experiencing severe tremors. He said that he had not previously seen Anderson in this condition. Dr Whitney opined that the condition was triggered by accusations of sexual misconduct and bullying. -- 4 of 32 -- 5 [17] The medical evidence in the proceedings supports a conclusion that Anderson has suffered a personal injury. In terms of the contemporaneous evidence, it is my view on balance, that despite the absence of clinical findings in the medical record, the record and the correspondence adequately discloses the extent and nature of the stressors brought to bear on Anderson, and form a sufficient platform for an inference to be drawn that the stressors had caused Anderson stress and anxiety. I accept that there is a doubt about when a psychological injury attributable to the allegations was diagnosed. However whether the injury was diagnosed by Dr Whitney on 24 July 2015 or Dr Regan on 29 July 2014 or subsequently by Dr Tucker, does not preclude a finding being entered that Anderson has suffered a personal injury pursuant to the statute. [18] Subsequent to the consultation with Dr Whitney on 24 July 2015, Anderson saw Dr O'Regan on 29 July 2015 when he was given a referral to Dr Tucker. In this referral Dr O'Regan opined that Anderson had recently developed tremors and psychomotor retardation symptoms after an accusation of workplace bullying and sexual harassment. He also stated that Anderson had "a long history of depression and is currently on lovan. This was controlled at the time of the accusations which has sent him into a state". [19] Dr Tucker first saw Anderson on 18 August 2015. On 19 August 2015 he wrote to Dr O’Regan providing his assessment of Anderson and setting out a management plan. Dr Tucker wrote that he had diagnosed Anderson with "severe stress (adjustment) disorder with anxiety and depression" caused by workplace stressors. He said that the diagnosis "may be considered as a severe acute exacerbation". [20] I am satisfied that the evidence establishes that Anderson did sustain a personal injury. I accept that Anderson had no prior warning of the complaints and that he would have been shocked and surprised by the allegations. Other than the evidence of Morris that he had raised the inappropriateness of any commentary Anderson had made about Robinson's skirt, it was not in dispute that no one had told Anderson that his comments were inappropriate. I also accept that it was more likely than not that the allegations caused psychological stress or anxiety; and that given his pre-existing condition he would have been more susceptible to illness or injury as a result of the allegations. [21] While Morris's evidence, if accepted, establishes that Anderson had a level of familiarity with the workers compensation process, it does not sustain, on the balance of probabilities, an allegation that Anderson had fabricated his worker's compensation claim. This evidence recalls a conversation which took place before the allegations were levelled, it canvasses a proposition allegedly made by Anderson which may simply reflect his disenchantment at a company decision not to award a pay increase and not something more sinister, and in any event the comment allegedly made by Anderson is ambiguous in that it suggests that Anderson was encouraging Morris to make a stress claim, not that he was foreshadowing that course of action for himself. Nor do I consider that Anderson's insistence that the minutes include reference to his stress foreshadowed fraud. Anderson had already told Ben Waldron that he would be stressed by allegations when informed of them the previous day. Further, a proposition by Anderson that the allegations and the investigation were causing him anxiety and stress is not inconsistent with the evidence overall or my findings arising from the evidence. -- 5 of 32 -- 6 Association with Employment [22] It was the appellant's submission that if it were held that Anderson had sustained a personal injury, the evidence did not support a finding that the injury arose out of or in the course of Anderson's employment and in circumstances where his employment was the major significant contributing factor in the development of the injury. [23] The appellant's submission in this regard was not lacking in substance. Anderson had a long history of depression unrelated to employment and his condition over time had been influenced by a range of stressors. In his evidence Dr Tucker said that he was aware of these stressors but maintained, in effect, that the psychological injury that he had diagnosed was attributable to the allegations, not the historical stressors (T3-101): "Are you saying that none of those matters impinged on his mental state?---None of those matters impinged on his capacity to carry out his job in that period leading up to the allegations - or his being informed of the allegations. That's correct. He was managing his job and his work, and had done so, actually, for quite a while, despite having a very heavy workload and so on. So he's experienced. He's an intelligent guy. He was able to cope with that enough to be able to do his job - - - So - - -?--- - - - adequately, most of the time, as I understand it. So the focus in understanding his current injury is what's happened in the workplace on the 23rd and 24th of July; is that right?---That's right. That's the significant stressor." [24] The historical stressors are summarised as follows: (i) Anderson’s wife suffered from a number of debilitating medical conditions; (ii) One of Anderson’s children suffered from chronic fatigue syndrome; (iii) Anderson was suffering from serious financial difficulties; (iv) Anderson had suffered from a number of physical health problems resulting from a motor vehicle accident in 1995; (v) Anderson had experienced stress and depression as a result of the motor vehicle accident; [25] In his correspondence to Dr O'Regan on 19 August 2015, Dr Tucker opined: (i) That Anderson had recovered fully from the effects of the motor vehicle accident and was able to cease psychotropic medication; (ii) That Anderson experienced a recurrence of depression in December 2014; -- 6 of 32 -- 7 (iii) That Anderson’s depression was acutely exacerbated when he was informed of allegations of bullying and sexual harassment on 24 July 2015; [26] In his evidence Dr Tucker rejected a suggestion that, in a context where the allegations against Anderson were true, Anderson’s condition could be attributed to distress suffered arising from a guilty conscience, from financial problems resulting from a loss of job, and by a sense of shame and humiliation. Dr Tucker said that while it was possible that these factors could cause anxiety or distress, they were not the significant stressor for Anderson at the relevant time (T3-108). [27] It was also Dr Tucker's evidence that while an allegation of bullying had been made against Anderson, the allegation of sexual harassment was the significant stressor and that Anderson "was greatly shocked by the allegation of sexual harassment" (T3-88). [28] WorkCover wrote to Dr Tucker on 8 December 2015 and asked him to provide a clinical report which addressed, inter alia, specific questions. Dr Tucker provided the report to WorkCover on 14 December 2014. In the report Dr Tucker opined to the following effect: (i) That he diagnosed Anderson with a severe adjustment disorder; (ii) That Anderson’s adjustment disorder was caused by work stressors (allegations) made or communicated on 24 July 2015; (iii) That while Anderson had a previous bout of moderate depression, the depression had been well controlled and had not affected his work performance in the months preceding the stressors (allegations); (iv) That the diagnosed work related condition was not an aggravation of a pre-existing condition because the previous moderate depression had been well controlled for a long time; (v) That there were no other stressors (other than the allegations) either at work or away from work affecting Anderson’s capacity. [29] The appellant submitted that both Dr Tucker's and Dr Whitney's evidence should be discounted because they had become so involved in advocating for Anderson and his workers compensation cause that they were unable to be dispassionate or sufficiently objective in forming clinical opinions about Anderson and his condition. Despite however the reservations about objectivity, no other medical evidence was adduced in the proceedings, and while the witnesses' personal support for Anderson's cause was obvious, it does not necessarily follow that their clinical observations were flawed. [30] The evidence about Anderson's health between his return to work toward the end of May 2015 and the levelling of the allegations on 23 July 2015 is not extensive. Dr Whitney had little to say about the matter in his evidence, but it was clear that Anderson continued to take anti-depressants. The effect of Anderson's evidence was that once the problems with his medication were sorted out, his condition was good. -- 7 of 32 -- 8 While Ben Waldron expressed a reservation about whether Anderson was back to his best, he said that his condition had substantially improved. [31] Ben Waldron informed Anderson about the allegations in a mobile telephone call from a work site on Thursday 23 July 2015. Anderson said that he received the call around 12 midday while he was in the lunch room with co-workers and that Waldron told him that sexual harassment and bullying charges had been made against him and that he was required to attend a meeting at 10.00am the following morning to discuss the allegations. [32] It was Ben Waldron's evidence in the proceedings that at the end of the conversation Anderson told him "Ben, I can't be in this office. I need to go home" (T2-126). The notes of the conversation were consistent with this exchange. The notes also record that in the course of the conversation Anderson told Ben Waldron that "you should know me by now Ben, I am going to worry and stress over this. Although I’ve done nothing wrong so I shouldn’t be worried". [33] Notwithstanding that Anderson's history disclosed the presence of multi-factorial stressors, the medical evidence strongly suggested that Anderson's decline into a depressive state on or about 23 July 2015 was triggered predominantly, if not solely, by the allegations levelled against him or by activities arising from the allegations. In this regard I accept Anderson's evidence that he was shocked and surprised to learn of the allegations made against him. Whatever the nature or extent of the banter he engaged in with any of his co-workers, there was no significant evidence that Anderson knew his behaviour was offending anyone. No one had indicated to him that they had taken offence, nor had his employer counselled him about inappropriate commentary. [34] In my view the basic clinical conclusions that Anderson had suffered a psychological injury as a result of the complaints made against him are consistent with the relevant factual circumstances including the following: (i) Anderson's pre-existing condition had stabilised; (ii) Anderson had no forewarning of the allegations and he would have been shocked and surprised by the allegations; (iii) Anderson would have been anxious and apprehensive about the formal investigation process put in place; (iv) Anderson did not continue working after he was told about the allegations and the investigation process; (v) The follow-up email sent to Anderson on the afternoon of 23 July 2015 would have been more likely to have increased, rather than to have mitigated, any level of stress or anxiety; (vi) Anderson attended on his general practitioner at 7.30am the following morning and extensively discussed the allegations. [35] I am satisfied, after consideration of the evidence in the proceedings and the submissions of the parties, that the appellant has sustained a psychological injury, that -- 8 of 32 -- 9 his injury was causally connected with his employment, and that the employment was the major significant contributing factor to the development of his injury. Consequently, the outcome of the appeal turns on whether the appellant's injury has been caused by management action and, if so, whether the injury is withdrawn from s 32(1) of the Act by virtue of the operation of s 32(5) of the Act. Relationship of Injury to Management Action [36] Section 32(5) of the Act provides: (5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances— (a) reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment; (b) the worker’s expectation or perception of reasonable management action being taken against the worker; (c) action by the Regulator or an insurer in connection with the worker’s application for compensation. [37] In determining the association between the psychological disorder and reasonable management action, the wording of the section does not suggest a narrow construction should be applied. Whether the injury arises out of, or in the course of, management action invokes both causal and temporal associations. The temporal connection is the less difficult test to satisfy. Whether Anderson's injury occurred in the course of management action is a broad proposition and may not require a direct causal connection. [38] A question raised by the proceedings was whether management action had any role to play in the development of Anderson's psychological injury. Dr Tucker had communicated his view on the matter to WorkCover on 16 September 2015 (Exhibit 80) when he opined that it was "the allegations of sexual abuse that have caused Mr Anderson's decompensation – and not the way that management handled the situation". While Dr Tucker was more equivocal about the issue in giving his evidence in the proceedings he did express the view that even if management had handled the matter perfectly, Anderson would still have decompensated. [39] It is not easy to divorce the allegations from management action in the circumstances in which Anderson became aware of the allegations. This was not a case where Anderson was tipped off by a colleague that the allegations had been made or where someone had inadvertently disclosed the information. Further when he was informed of the allegations, Anderson was not simply told that allegations of sexual harassment and bullying had been made and nothing further. The notification was overlaid with a process which clearly implied that the complaints would be rigourously investigated, that Anderson's behaviour would be subject to close scrutiny, and that co-workers would be interviewed about Anderson's conduct. -- 9 of 32 -- 10 [40] Ben Waldron kept notes (Exhibit 57) of the phone conversation wherein he informed Anderson of the allegations. According to the notes, Waldron told Anderson that Robinson and Morris had claimed that he had behaved inappropriately toward them, including making derogatory comments. He also said in effect that Robinson had complained that Anderson had sexually harassed her and that Morris had complained that he had bullied him. Ben Waldron told Anderson that he needed to attend a meeting to discuss the matter the following day and that he had the right to bring a support person with him. He told Anderson that this was the start of the process and that he (Waldron) needed to find out whether the accusations made were true or false. Ben Waldron also told Anderson that he would provide him with an investigation protocol and a confidentiality agreement before the meeting started. [41] If Anderson had any doubt about the formality of the process it would have been dispelled by the content of an email that he received later in the same day. In the email (Exhibit 59) Ben Waldron confirmed that Anderson was required to attend the interview the following day; said that the meeting was to allow him the opportunity to respond to allegations made; and gave more particulars of the allegations stating that they related to "behaviours/comments that you have made towards co-workers that were either sexually suggestive and/or using excessive aggressive, derogatory/uncouth language". Anderson was also informed that both Ben Waldron and Andrew Draper would be in attendance at the meeting. [42] I am not inclined to accept that Anderson's awareness of the allegations and his shock and distress upon hearing the allegations can be isolated from other parts of the management message communicated by Ben Waldron. I don’t think that the extent of his reaction can be attributed solely to feelings of disbelief that he might be accused of sexual harassment and dismay that he had been betrayed by co-workers. In my view both the notification of the complaints, and the communication about the management processes to be deployed in the evaluation of the complaints, had a role to play in the development of Anderson's injury. [43] In this regard it is noted that some important messages were woven into management's communication of the allegations and that it would be very difficult in determining the impact of the allegations on Anderson's mental state to excise the impact of the messages. The tenor and substance of these parts of the communication would not have been lost on Anderson. The formal investigation process clearly had implications for reputational damage and for Anderson's continuing employment. Further the process meant that Anderson could not rely on his status in the organisation or his friendship with Ben Waldron to shield him from any adverse consequences. Approach [44] Given my conclusion in respect to the specified threshold issues, the question for determination is whether Anderson's psychiatric or psychological disorder arose out, of or in the course of, reasonable management action taken in a reasonable way by his employer in connection with his employment. [45] In making determinations about relevant management action I am guided by findings about management decision making arising from or related to the complaints made against Anderson and which led to allegations being presented to Anderson on 23 July 2015. This exercise primarily involves an evaluation of how management responded -- 10 of 32 -- 11 to the complaints made against Anderson and whether the decisions made, and the processes and procedures put in place, were reasonable having regard to the facts and circumstances prevailing and known at the time. [46] Findings do not need to be made about whether Robinson was sexually harassed or Morris was bullied. I accept that once the employer had been apprised of the complaints and had formed a prima facie view that the complaints were neither frivolous nor vexatious, the employer had an obligation to respond to the complaints. Depression [47] A relevant consideration in the determination of the appeal is whether the employer was aware prior to the lodgment of Robinson's complaint that Anderson was suffering from, or had suffered from, a psychological illness. A consideration of this issue does not raise matters going to causation but involves an assessment of whether the employer should have been cognisant of Anderson's condition, and taken it into account, when determining how to respond to Robinson's complaint. In electing to embark on a full scale investigative and disciplinary process it was open to argument whether ECP concerned itself with the impact of such a process on Anderson's health. [48] Anderson said that he was first treated for depression after an accident in 1995. In terms of his employment at ECP, while Anderson said that he did not commence taking medication for depression until December 2014, the medical records suggest that he started the medication in December 2013. Anderson said that over time his dosage had increased and that he really struggled with the higher dose medication and that it turned him "into a zombie". He said that by April 2015 his depression was "quite bad". He said that in May 2015 various changes were made to his medications involving both a variation in dosage and a change in the type of medication. He said that he did not cope very well with the changes. [49] While Dr Whitney was unsure of the cause of Anderson's depression it was his understanding that its onset was prior to August 2009 and that the depression was longstanding. He said that he first prescribed an anti-depressant ("Avanza") for Anderson on 7 May 2011 but this drug was subsequently discontinued because of adverse side effects. It was not until 28 December 2013 that anti-depressant medication was resumed when "Cymbalta" was prescribed, but on 27 May 2014 this drug was also discontinued because of side effects. Subsequent to this Anderson was prescribed "Duloxetine" on 16 October 2014 but the drug was changed back to Cymbalta on 14 November 2014. While the record of consultation on 12 May 2015 disclosed that Dr Whitney asked Anderson to continue taking Cymbalta, a different medication, "Lovan" was prescribed on 26 June 2015. [50] Anderson said he took a week off work in May 2015 after a discussion with Ben Waldron (T3-12). It was his evidence that when Ben Waldron expressed concern about his well-being in a meeting in May 2015, he told Ben Waldron that he had depression and that he was "trying to deal with it". He told Ben Waldron that if necessary he would stop taking his medication, however Ben Waldron told him not to do that and to take some time off. A text message (Exhibit 55) sent by Anderson to Ben Waldron on Sunday 17 May 2015 is consistent with the testimony in that it stated that Anderson was "still trying to adjust to new med" and that he would "need to work from home" till Thursday. -- 11 of 32 -- 12 [51] The effect of Ben Waldron's evidence (T2-114) was that Anderson told him that he was trying new medication and that the medication did not seem to be working properly. Anderson did not however tell him what the medication was, nor did he inform him that he had been diagnosed with depression. Waldron said that he told Anderson to take some time off "to sort himself out". [52] Ben Waldron said that he was moved to have a conversation with Anderson in the second week of May 2015 because he could see that something was not right. He said that he noticed that Anderson had difficulty grasping concepts and that he demonstrated periods of vagueness. Some time after the event in August or September 2015 Ben Waldron had reduced his recollections to writing. The effect of the notes that he had made (Exhibit 79) was that prior to the conversation with Anderson, he had discussed Anderson's health with other senior managers including Alf Hiddlestone and Gerard Perret. Hiddlestone subsequently "had a chat" with Anderson and reported back that "something seems odd", while Perret said that Anderson "seemed extremely vague". [53] Ben Waldron pointed out that he was not sure of the cause of Anderson's condition and thought that it may have been related to stresses associated with the illness of Anderson's wife or arose of out Anderson's historical health problems. Anderson's wife had faced significant challenges during March 2015 which had preoccupied Anderson. These circumstances were reflected in a text message that Anderson had sent Ben Waldron on 29 March 2015 (Exhibit 53). In the text message he informed Ben Waldron that his wife's condition was serious and asked to take the rest of the week off work. However the following day, Anderson sent another text stating that his wife condition had improved and had stabilised. Anderson's own problems had been chronicled in an email that he sent to Ben Waldron on Thursday 5 March 2015 (Exhibit 51). In the email Anderson asked to take the following day off work. [54] While Ben Waldron maintained that he had not formally been informed of any depression; that he was not aware of any clinical diagnosis of depression; and that he did not know what condition Anderson's medication was treating, some inconsistency in his position was revealed in a reading of his notes in the evidence as Exhibit 79. [55] In the notes Ben Waldron wrote that he could not remember with certainty whether Anderson had informed him in May 2015 that he had depression, but that there "may have been a conversation, but if anything it was a passing comment". The notes also documented Ben Waldron's recollection of a phone call he had received from Anderson's wife soon after the May 2015 conversation with Anderson. According to the notes, Anderson's wife called a few days after the conversation and thanked Ben Waldron for having the discussion and said that it had persuaded Anderson to visit a doctor. She said that Anderson had been "distant and aggressive". Waldron stated in response that all he wanted was for Anderson to "sort himself out and get his medication sorted". [56] In his evidence in the proceedings Ben Waldron confirmed that he was told by Anderson’s wife shortly after the May 2015 conversation, that Anderson was depressed (T2-116): -- 12 of 32 -- 13 "Yes. And in that conversation, do you recall Mrs Anderson telling you specifically any particular diagnosis or condition?---So in that phone call, Trish sort of said along the lines of he’s depressed - - - Yes?--- - - - but whether that was – she didn’t say it was a clinical diagnosis. She didn’t say it came from the doctor. And I just assumed it was Trish’s take on – on John’s condition." [57] It was Karen Hall’s evidence that she was not aware that Anderson was being treated for depression. She was in the car however when Ben Waldron received the phone call from Anderson’s wife. Her recollection was that (T2-19) Anderson's wife was having difficulty in persuading Anderson to visit a doctor and that she was concerned about his health and did not want him to go back to work. She said that she remembered Ben Waldron saying that Anderson should go to the doctor and get treatment in order that he would be in full health before returning to work. [58] Ben Waldron agreed that Anderson told him that he was stressed when he informed him of the allegations against him via mobile phone on 24 July 2015 (T2-169): "I was asking you – I’ll go back to the question I asked you that, during the phone call that you had with Mr Anderson, he told you repeatedly that he felt shocked, stunned, would worry and stress about this?---Yeah. Which I said back to him, mate, there is no reason to worry or stress or there’s no reason to stress about this. It’s just part of a process that we’re going to work through and he actually came back and said, you know what, I’m right – you’re right, if – if I’ve done nothing wrong, why should I be – why should I stress about it and I said back to him that, you know, there’s – that’s exactly right and it’s just part of a process we have to follow through, you know, we’ll – we’ll run through this and we’ll go and we’ll go from there." [59] Felicity Waldron said that while she was aware that Anderson took some time off work in May 2015, she did not know that he was suffering from depression. Morris said however that he was aware by May 2015 that Anderson had depression and was struggling with his medication. [60] Anderson said that when he came back to work after his break in May 2015 he was feeling a lot better and that his new medication regime was effective in treating his symptoms. It was Ben Waldron's evidence that when Anderson returned to work around 23 or 26 May 2016 "you could see he was a lot better" and that he "seemed to be functioning better". However while he said that there had been improvement, it was his evidence that "I don’t know if he ever fully got back to normal". This observation was made by Ben Waldron in circumstances where he talked to Anderson two or three times a day following his return to work at the end of May 2015. [61] The evidence supports findings that during May 2015 Ben Waldron knew that something was amiss with Anderson; that he knew that Anderson was taking medication and was adversely affected by a change in medication; that he found it necessary to tell Anderson to take some time off work; that Anderson may have made a passing comment to him about depression; and that Anderson's wife had told him soon after the May 2015 meeting that Anderson had depression. These findings support a balance of probabilities conclusion that toward the end of May 2015, Ben -- 13 of 32 -- 14 Waldron would have known that Anderson was suffering from some form of depressive condition. Anderson’s Prior Record [62] Anderson had been employed by ECP for about four years prior to the lodgment of Robinson's complaint. He had worked closely with Ben Waldron in particular for some period of time. A relevant consideration in the determination of the appeal is whether Anderson had been previously been warned or counselled about inappropriate behaviour in the workplace or conduct offensive to women. [63] In his evidence Ben Waldron agreed that Anderson had been a loyal and diligent employee of ECP, that he had done "a lot of good work", and that he was "a good guy". He said that no prior complaint about Anderson's behaviour had been reported to him. He also said that he "didn’t think after working with John", and their discussions around the table, that Anderson would do what Robinson alleged (T2- 121). [64] Felicity Waldron said that she had been employed by ECP since 2011 and that she had not previously been made aware of any incident involving inappropriate conduct engaged in by Anderson. She agreed that Robinson's complaint involved behaviour that was out of character for Anderson and that she found the complaint "quite difficult to believe" (T2-54). [65] According to the records of interview, Lazdins was not aware of any inappropriate behaviour other than the "condom" comment; Silver said that in making the "skirt" comment, this was the first time that Anderson had crossed the line"; and Loge recalled only one occasion in which she considered that Anderson had acted inappropriately, however the comment he made was not directed at anyone in particular. Working Relationships [66] While the prima facie view was that Anderson supervised Robinson and that additional responsibility accrued from a supervisor’s duty of care, the evidence suggested that the nature of the working relationship was something different. Firstly, the organisation chart in the evidence as Exhibit 32 shows that Robinson reported to Draper with a dotted line to Anderson. Secondly, while Robinson nominally reported to Anderson, and Anderson signed her time sheets, most of her work was undertaken for Ben Waldron or others. Anderson said in his evidence that Robinson "reported almost directly to Ben" (T3-14); while the 27 July 2015 record of interview (Exhibit 13) discloses that when Robinson was asked what she thought of Anderson as a manager, she replied that "he doesn’t really have much to do with me other than signing timesheets". Sexual Harassment Complaint [67] Senior management first became aware of the Robinson’s complaint on Monday 20 July 2016 when she spoke to Andrew Draper, the operations manager. Draper referred the matter to Ben Waldron who was out of the office at the time. Ben Waldron said that he was on site when Draper informed him about Robinson’s complaint on -- 14 of 32 -- 15 Monday 20 July 2015. He said he sought advice from Felicity Waldron about process and procedure and took the matter from there. [68] Ben Waldron met with Robinson on Tuesday 21 July 2015 at 1.15pm. He said in his evidence that he formed the impression that Robinson was genuinely upset and that she was telling the truth. Ben Waldron sent Robinson home after this meeting. [69] Robinson’s complaint that she had been sexually harassed by Anderson arose from comments Anderson had made to, or about, Robinson. A record of the meeting with Ben Waldron on 21 July 2015 (Exhibit 12) discloses that in response to the question "can you tell me exactly what has been said to you", Robinson referred to three incidents, the first relating to a comment about condoms, the second arising from a suggestion that Robinson was a lesbian, and the third relating to a comment about Robinson's skirt. Robinson said that Anderson's inappropriate remarks had been heard by others and she named Scott Morris and three other co-workers, Kelly Loge, Karl Lazdins and Peter Silver. [70] Morris was interviewed by Ben Waldron at 12.57pm on Wednesday 22 July 2015. In so far as Robinson’s sexual harassment claim is concerned, and according to the notes of meeting (Exhibit 18), Morris told Waldron that: (i) He was a witness to the condom comment; (ii) He heard Anderson say to Peter Silver "have you seen her (Robinson) in that skirt"; (iii) Robinson had vented to him about inappropriate conversations that Anderson had with her but it was his impression that Robinson was going to "deal with the issue personally". [71] The first incident occurred in the office toward the end of May 2015 when Robinson informed Anderson and others that she would not be joining them for lunch because she had to go to the pharmacy. In her evidence in the proceedings Robinson said that Anderson had responded to her position by telling her that "flavoured condoms were on sale, and that maybe that would give" her something to do in the lunch break (T1- 21). Robinson said that Anderson also raised the issue when she bumped into Anderson and others in the car park. She said that Anderson had yelled out "don’t forget the flavoured condoms". Her evidence is consistent with the record of her meeting with Ben Waldron and Draper held on 21 July 2015. [72] It was Morris’s evidence (T1-59) that Anderson’s response in the office was to say "are you going to the pharmacy to buy edible condoms". The record of interview with Lazdins disclosed that Lazdins heard Anderson call out to Robinson in the car park and say "… don’t forget to buy some condoms, they come in different flavours and colours". Robinson's claim that Anderson made suggestive remarks about how she should spend the lunch break is not supported in either Morris's version or the version attributed to Lazdins. There is no significant inconsistency, however, in the evidence of Robinson, Lazdins or Morris about what Anderson was alleged to have said in the car park. During cross-examination, Morris described the condom comment made by Anderson as "more or less just a one-liner" said on two occasions. -- 15 of 32 -- 16 [73] While Robinson said that she told Morris that she was angry and upset that Anderson had made the "condom" comment and that Morris had subsequently informed her that he had spoken to Anderson and told him that he should not speak to Robinson in that way, Morris’s recollection was different. In his evidence he denied that he had told Robinson that he had spoken to Anderson about the inappropriateness of the "condom" comment. He said that he made the approach to Anderson after Anderson had made the "skirt" comment. [74] The second incident occurred on 15 July 2015 when Morris and Silver informed Robinson that Anderson had made inappropriate comments (in her absence) about the skirt she had worn to work either that day or a few days earlier. The effect of the evidence is that in the first instance Robinson was given an edited version of what Anderson had said, but that at some subsequent stage further details were provided. While Robinson said that she was first informed about the exchange on 15 July 2015, it was not clear on the evidence when she was given more information. If the contemporaneous notes are relied on, the record of interview dated 21 July 2015 discloses that Robinson was told that Anderson had made remarks "with regards to the way Kathleen dresses", while Morris said in the interview of 22 July 2015 that Anderson had said "have you seen her in that skirt". [75] In Robinson's second interview on 27 July 2015 the notes record her as saying that on 15 July 2015 she was told that Anderson spoke about how she "dressed inappropriately". She said that Silver was intending to give her some particulars, but Morris intervened and stopped him. Morris provided different versions about the skirt incident in the 22 July and 27 July 2015 interviews. In the second interview it appears that he may have relied on further recollections which he recorded in notes that he had made between the first and second interviews (Exhibit 20). [76] It was Morris's evidence in the proceedings that, when he told Robinson about what Anderson had said about her skirt, he did not think that Robinson would get upset (T1- 85). His evidence in effect was that it was common for him and Robinson and other staff to discuss Anderson "and his mannerisms and what he did". He said that people "just say John’s made another inappropriate call and that’s – that’s just the way we spoke about him" (T1-86). [77] The third incident occurred on 16 July 2015, and just before Robinson’s birthday, when Robinson received flowers from a female school friend. Robinson said in effect that when the flowers were delivered she was in the office with Kellie Loge and Anderson. She alleged that Anderson repeatedly remarked to Kellie Loge, and in Robinson’s hearing, that Robinson must be a lesbian because she was receiving flowers from a female. [78] While Loge did not give evidence, a version of events attributed to her was included in the evidence in the record of her interview with Ben Waldron and Andrew Draper on 27 July 2015 (Exhibit 43). The record discloses that Loge said that she did enter Robinson’s office area after the flowers had been delivered and heard comments being made about Robinson’s boyfriend. She also said that she recalled that a comment had been made about the flowers, but for her it was a "water off the duck’s back" comment, but that she would have expected that the "comment would have been frustrating" for Robinson. By way of a general observation, Loge said that she had only witnessed or -- 16 of 32 -- 17 heard Anderson engage in inappropriate behaviour on one occasion when he took a joke too far. However she said the joke was not directed at anyone in particular. [79] There was no contemporaneous record of Robinson’s discussions with Draper. Robinson said in her evidence that she informed Draper about the three incidents. She said that Anderson's "lesbian" and "skirt" comments provoked her consideration of a complaint, and that after some reflection she decided to "go and see Andrew Draper" on 20 July 2015. In her evidence in the proceedings, Robinson described the primary incident as the comments that Anderson had made about the way that she dressed (T1- 28). [80] It was Draper’s evidence that Robinson approached him with her concerns in the early afternoon of 20 July 2015. Draper said that he told Robinson that he recognised that the matter was of a sensitive nature and that he needed to refer it up the line. After the discussion with Robinson he immediately called Ben Waldron and told him about the matter and said that Robinson appeared upset. Ben Waldron agreed that the matter was serious and that he would discuss it with Felicity Waldron and get back to him. [81] Subsequently, on the advice of Ben Waldron, Draper asked Robinson to formalise the complaint. Ben Waldron’s evidence was that he told Draper that if Robinson made a formal complaint he would start working on the matter either that day or the following day. Robinson agreed to make the formal complaint and emailed Draper (Exhibit 11) at 9.00am on 21 July 2015, stating that following on from the previous days discussions she wanted to formalise her complaint "regarding inappropriate comments" that she had received from John Anderson. [82] Draper had only worked with ECP since the middle of May 2015 and typically spent three days out of five out of the office and on site. He made it clear that he did not have any pivotal role in the investigation and that while he assisted Ben Waldron in the investigative process, he had no role in the decision making or the associated processes and procedures. [83] Felicity Waldron said that she became aware that Robinson had made a complaint when Ben Waldron telephoned her and told her that Robinson had approached Draper and that Draper had told her that ECP would investigate her complaint. She provided advice on how the complaint should be investigated and also spoke to Robinson to inform her of the investigative process. She later provided Ben Waldron with some notes to guide him through the investigative process. [84] Felicity Waldron had earlier been informed of a potential problem between Robinson and Anderson in an informal discussion between herself and Karen Hall and Scott Morris. Morris's evidence in the proceedings was that he had mentioned to Hall and Felicity Waldron in a discussion on 23 June 2015 that Anderson had made inappropriate remarks "in front of" Robinson. However Morris declined to provide any particulars and neither Hall nor Felicity Waldron followed-up with Robinson. [85] Felicity Waldron said that ECP had delivered training to its staff about bullying and sexual harassment in early June 2014. ECP policies in these areas were distributed to training participants. Anderson had attended these training sessions. -- 17 of 32 -- 18 [86] Ben Waldron told Anderson about Robinson's complaint around 12 midday on Thursday July 23 2015. He advised Anderson that he would be required to attend a meeting at 10am the following day (Friday 24 July 2015). Anderson went home soon after the discussion. At 2.41pm on the same day Ben Waldron emailed Anderson (Exhibit 59), reiterating that Anderson was required to attend the meeting and outlining the allegations that he was required to respond to. [87] A record of this meeting is in the evidence as Exhibit 39. In the meeting Anderson denied that the condom comments were ever made, recalled that flowers had been delivered to Robinson but denied that he suggested that she might be a lesbian, and while he remembered the circumstances associated with the "skirt" incident, he denied that he made any inappropriate comment. He said that he told Morris that Robinson's skirts were too tight and should not be worn in the workplace. Anderson said that he had illustrated his concern to Morris by referring to the inappropriate work attire of a former female work colleague who wore low cut dresses. [88] Later that day and at 6.38pm, Ben Waldron emailed Anderson at home (Exhibit 62) and informed him that his employment had been suspended on full pay pending completion of the investigation. In this regard the email stated that Anderson would be required for a "closeout" meeting sometime on the following Wednesday (July 29). The email also invited Anderson to nominate interviewees who "may be able to substantiate what you have stated today". [89] It was Karen Hall’s evidence that Anderson came into her office on 23 July 2015 and informed her that he was going home. He told her that Ben Waldron had "called him in for a matter and he couldn’t believe it". When Hall asked Anderson if he was unwell, he said "no". When Anderson left, Hall called Ben Waldron about the visit. Ben Waldron told her that "there was a confidential matter" and that she (Karen Hall) was "being kept out of the loop". The effect of Hall’s evidence was that, some time after the event, she became aware that Felicity Waldron was handling the matter from a HR perspective. However she had nothing to do with the disciplinary process. [90] A matter in contention in the proceedings arose from the lack of specificity associated with the allegations put to Anderson either during the 24 July 2015 meeting or in the lead up to the meeting. Frequency and dates were for the most part missing from the allegations. Draper accepted in his evidence that when the allegations were presented to Anderson, no dates were given to Anderson indicating when the comments complained about had occurred. [91] In her interview with Ben Waldron on 21 July 2015, Robinson said that the "lesbian" comment was made on Thursday 16 July 2015, a day or so prior to her birthday. She did not specify when the "condom" or "skirt" comments were made, nor was she asked for this information. While Morris heard both the "condom" comment and the "skirt" comment he did not nominate when the comments were made, nor was he asked during his interview with Ben Waldron on 22 July 2015. [92] Further information about the dates of incidents was sought at Robinson's second interview on 27 July 2015. Robinson said that the "condom" comments were made about eight weeks earlier, indicating that the comments were made at the end of May 2015. Robinson also indicated that the "skirt" comment had occurred on the Wednesday immediately preceding the "flower" incident (Wednesday 15 July 2015). -- 18 of 32 -- 19 The record of interview with Lazdins discloses that Lazdins thought that the "condom" comment was made 4 to 8 weeks earlier (viz some time between the end of May and the end of June 2015. Loge's recollection was that the "flower" exchanges occurred about two weeks earlier (viz around 13 July 2015). Silver said that the "skirt" comment was made about 1.5 weeks earlier (viz around 15 July 2015). The effect of the investigative process was that only the date of the "lesbian" comment was disclosed to Anderson when the allegations were put to him on 24 July 2015. [93] In her evidence in the proceedings, Robinson said that she had expressed her concern to Morris about comments being made by Anderson and that she had numerous discussions about Anderson’s behaviour with Morris. Morris did not disagree and the effect of his evidence was that they regularly complained about Anderson (T1-85). [94] Robinson also said that she had also told Ben Waldron on 21 July 2015 that she had discussed her grievances with a number of other staff members (T1-44): "Did you tell Mr Waldron at that stage that everyone in the office knew about the – your allegations anyway?---I did. I’d spoken to him about the fact that I’d discussed it with other staff members. He said that that’s fine and understandable, given the situation – that I needed support – but from that point on, it was very clear that the only person I could discuss it with was my support person." [95] The contemporaneous evidence supports a finding that in determining the allegations to be presented to Anderson on 23 July 2015, Ben Waldron would have acted on the following information: (i) Robinson's claim, partially corroborated by Morris, that Anderson had made particular comments to her about condoms in the office and in the car park on the same day; (ii) Robinson's uncorroborated claim that Anderson had repeatedly said that she was a lesbian on an occasion when flowers were delivered to her at work; (iii) Robinson's claim, corroborated by Morris, that Anderson had commented about the way Robinson dressed and had observed to Silver "have you seen her in that skirt". Bullying Complaint [96] Setting aside definitional issues, a concern about bullying in the workplace first arose when Morris complained on 23 June 2015 to Karen Hall and Felicity Waldron about how Anderson was treating him. At the time Morris said that he was "venting" and that he did not want either Hall or Felicity Waldron intervening or taking any action. It was Karen Hall's evidence that when Morris was asked in effect whether his grievance was serious enough to warrant making a complaint, he said that it was not and that he would deal with the matter himself. [97] A couple of weeks after this, according to Felicity Waldron's evidence in the proceedings, Morris told her in the lunch room that Anderson had called him a -- 19 of 32 -- 20 "fuckwit" or a "fucking idiot" and that Anderson had sworn at Kelly Loge and Karl Lazdins. [98] The matter next came to ECP's attention when Robinson raised the manner in which Anderson was treating Morris during her sexual harassment interview with Ben Waldron on 21 July 2015. It was also canvassed the following day when Morris was interviewed by Ben Waldron about Robinson's complaint. In this regard the record of interview suggests that the discussion was focussed predominantly on Morris's treatment by Anderson, not on Robinson's circumstances. Morris said in his evidence that during the interview, Ben Waldron asked him if he wanted to make a formal complaint and that he responded in the affirmative. Consequently, at this point in time Ben Waldron found himself having to respond to two complaints, not one. [99] However this predicament altered the following day when at 12.14pm on Thursday 23 July 2016 Morris sent an email (Exhibit 21) to Ben Waldron informing him that he "he was not comfortable in making a formal complaint about the situation between Kathleen and John", and notifying of his intention to resign. It is not clear on a reading of the email whether Morris's intention was to withdraw his bullying complaint or withdraw his support for Robinson's complaint. [100] In his evidence in the proceedings about the email, Morris said that, at least for him, he did not consider that the circumstances would have given rise to Robinson making a complaint, and that when he comprehended the escalation he did not want to be part of the process (T1-87): "No, it’s not a part of it. That’s what you were withdrawing. You were withdrawing your support for Kathleen’s allegations against John at that point, weren’t you?---That was part of it. I honestly didn’t think it would get to this stage when I told Kathleen about the skirt. You weren’t at that point having – sorry, at that point you didn’t want anything further to do with being a witness in relation to Kathleen’s complaints about John. That’s correct, isn’t it?---That would be part of it, yeah." [101] Morris also said in his evidence that he did not want to make a formal bullying complaint. He said that he did not want to be part of the process and he did not want to work with Anderson "after something like this happened" (T1-73). Morris subsequently withdrew his resignation when Ben Waldron assured him that if he and Anderson were to continue working together, they would be located in separate offices. It was Felicity Waldron's evidence that while she persuaded Morris to withdraw his resignation, Morris told her that he did not want to go ahead with the bullying complaint (T2-51). [102] The contemporaneous notes of Anderson's meeting with Ben Waldron and Draper on 24 July 2016 disclose that Ben Waldron told Anderson at the start of the meeting that while Morris had "withdrawn his official complaint" he was still obliged to investigate the matter. When Ben Waldron met with Anderson he had gathered information from Robinson and Morris, but not from anyone else. Robinson had told Ben Waldron in the meeting on 21 July 2015 that Anderson treated Morris inappropriately including telling him in an aggressive manner to "get fucked". -- 20 of 32 -- 21 [103] According to the notes of meeting on Wednesday 22 July 2015 (Exhibit 18), Morris told Waldron that: (i) Anderson had told Lazdins on numerous occasions to "shut the fuck up"; (ii) When Morris enquired about Anderson's welfare, Anderson told him to "shut the fuck up, you fucking idiot"; (iii) Morris was frustrated with Anderson on "performance matters"; (iv) When Morris had tried to discuss workload matters with Anderson, Anderson told him that he is not his boss and that he cannot tell Anderson what to do. [104] Subsequently, Ben Waldron had canvassed bullying or bullying related behaviour during his interviews with Lazdins, Loge and Silver on 27 July 2015. In this regard, and based on the interview notes, Lazdins did not proffer any example of inappropriate behaviour in the workplace which might amount to bullying, and the closest Silver came to a description of bullying conduct was when he said that Anderson had "become a bit shorter with people". For her part, Loge said that she did not have any first hand knowledge of "bullying or harassment in the workplace", but observed that "sometimes there seems to be a disagreement on how" Anderson and Morris undertake their work. Had this information been accessed by Ben Waldron prior to his meeting with Anderson, it would have led Ben Waldron to conclude that if Anderson was conducting himself inappropriately, it was conduct limited to his relationship with Morris. [105] In circumstances where Ben Waldron was confronted with conduct where, irrespective of findings about blame, the inevitable effect was to render the working environment between Robinson, Morris and Anderson dysfunctional, it was not surprising, nor unreasonable, that he elected to review and evaluate both complaints in the same process. Nor in terms of the bullying complaint do I consider that anything significant turned on Ben Waldron's decision to confront Anderson before he had assembled the views of Lazdins, Loge, and Silver. In this regard the evidence only peripherally suggested that Morris' complaint was to be resolved by reference to anything other than a consideration of the relationship between Morris and Anderson alone. In this regard it would have been very evident to Ben Waldron after his meeting with Morris on 22 July 2015 that the relationship was in a state of serious disrepair. [106] While I did not get the sense that Morris wanted a formal investigation and I hold significant reservations about the efficacy of a formal investigation in what was essentially a one on one dispute, I don’t think that any evaluation of the ECP response to the bullying complaint contributes adversely to the appellant's prospects in terms of a finding about reasonable management action. Further in terms of the contribution of the bullying complaint to the development of Anderson's psychological disorder, I am inclined to accept Dr Tucker's evidence that the allegation of sexual harassment was the dominant contributing factor, not the bullying complaint. -- 21 of 32 -- 22 Management Action [107] Anderson's psychological injury arose out of, or in the course of events occurring during his employment with ECP. These events were associated with complaints of sexual harassment and bullying levelled against Anderson and included decisions made by ECP, or actions taken, in relation to their investigation of the complaints. Competing views were advanced about the appropriateness of management action. On one perspective the management action complied with accepted investigation protocols and was self-evidently reasonable. On the other hand a number of propositions were advanced which, if accepted, were capable of sustaining a conclusion adverse to the appellant. [108] My evaluation of the reasonableness of the relevant management action is informed principally by findings on facts and circumstances which were contemporaneous with the management action taken. The focus is on evidence which surfaces what management knew, or reasonably should have known, at the time that key decisions were made in relation to the complaints. The temporal distinction is important in circumstances where some of the testimony in the proceedings contributed observations, views and facts that were not known, or only partially known, by the decision maker at the time that relevant decisions were made about how management should respond to the complaints. [109] Proposition critical of management action include that ECP was motivated to characterise Anderson's behaviour as serious misconduct to facilitate the termination of his employment; that the ECP response to the complaint was not proportionate; that the scale of investigation launched was unnecessary; that in conducting the investigation management was not cognisant of Anderson's psychological frailties; and that procedural mistakes were made in the conduct of the investigation. [110] Noting that the legislative differences do not diminish from the force of the authority, I endorse, with respect, the approach adopted by Landers J in making a determination about reasonable management action: "If after all of those matters the worker has not established that the disability did not arise wholly or predominantly from administrative action, then next it must be determined whether that administrative action was reasonable and if reasonable whether it was taken in a reasonable manner by the employer in connection with the worker's employment. Both of these further matters will be an inquiry of fact to be determined objectively. Whether the administrative action is reasonable is simply a matter of fact. Whether the administrative action was taken in a reasonable manner by the employer will depend upon the administrative action, the facts and circumstances giving rise to the requirement for the administrative action, the way in which the administrative action impacts upon the worker and the circumstances in which the administrative action was implemented and any other matters relevant to determining whether the administration action was taken in a reasonable manner by the employer." 1 1 Keen v Workers Rehabilitation and Compensation Corporation (1998) 71 SASR 42 -- 22 of 32 -- 23 Formal Investigation [111] For a small employer, the investigation appeared unnecessarily forensic or elaborate. The formal nature of the ECP response was demonstrated by Ben Waldron's request that Robinson formalise her complaint; the conduct of formal interviews; the two- stage nature of the interview process; the insistence on the signing of confidentiality agreements; keeping records of meetings and requiring all participants to sign and endorse the records; the follow-up email to Anderson detailing the allegations and confirming the arrangements for interview; the sending home of Morris and Robinson; and the suspension of Anderson. [112] Ben Waldron decided to conduct a formal investigation soon after he became aware that Robinson had made a complaint and prior to any examination of the factual basis of the claims or evaluation of severity. Based on the early exchange of views between himself and Felicity Waldron, an immediate view was formed that the allegations were serious and that termination of employment might eventuate. This immediate response to the complaint emerged notwithstanding that, on an objective analysis the facts and circumstances known at that point in time would have clearly indicated that termination of employment was very unlikely and that some other response would be most likely to be deployed. Such facts and circumstances include: (i) There was no prior record of offending; (ii) Anderson was an exemplary employee with an unblemished record; (iii) Both Ben and Felicity Waldron had known Anderson for a number of years and both were surprised that Anderson was the subject of such complaints and considered the alleged behaviour to be out of character. (iv) Robinson had not asked for a formal investigation; (v) Robinson's allegations were on the lower end of the scale in terms of sexual harassment. [113] Further there did not appear to be any immediate need to commit to a formal investigation given that the evaluation of Robinson's complaint was not complex, involving only three incidents which were said to be witnessed by four co-workers, all of whom worked in the Caboolture office. Therefore it was open to Ben Waldron to very quickly inform himself about the veracity of the complaint and also to inform himself about whether the complaint was symptomatic of a broader problem in the workplace. [114] It was not surprising therefore that the ECP reaction to Robinson's complaint led to speculation about whether ECP saw the complaint as an opportunity to terminate Anderson's contract in circumstances where no other ground for termination was available. Anderson had been alert to such a possibility as early as 24 July 2015 when he raised the matter with Dr Whitney, while in the proceedings the speculation was fuelled by the contents of an email (Exhibit 38) sent to Ben Waldron by Felicity Waldron on Tuesday 21 July 2015, and the contents of a "guide" (Exhibit 56) that Ben Waldron prepared immediately thereafter to guide him through the investigation process. -- 23 of 32 -- 24 [115] The guide included final steps wherein after giving Anderson the opportunity to respond to the findings of the investigation, Ben Waldron would adjourn the meeting for "10 to 15 minutes to discuss disciplinary actions". On resumption the disciplinary actions would be discussed with Anderson. The proposition arising was that the guide reflected a level of predetermination about the outcome of the disciplinary process. Felicity Waldron's email, which was sent prior to the conduct of any interviews, contained advice about how the investigation should be conducted. It concluded with a statement to the effect that possible outcomes of the investigation included a first and final warning or termination for serious misconduct. The email then stated that "all of this dependent on the value that John is providing. Termination would only occur over a matter such as this not performance based". [116] I accept that in drafting her advice, Felicity Waldron was addressing contingencies, setting out flexible options, and providing guidance in the event of particular outcomes of the investigation materialising. This does not necessarily explain however why Felicity Waldron thought it necessary to tell Ben Waldron that if he considered that Anderson's continuing employment did not offer value to ECP, the complaints could form the basis for a termination for serious misconduct in circumstances where general performance grounds for termination were not available. While both Ben and Felicity Waldron denied in their evidence that they thought that the complaints would lead to termination of employment, it is possible that Ben Waldron wanted to keep the option open. If so, he understood that for the termination option to be defensible, it would require a decision that was substantiated by a formal investigation or an investigation of some substance. [117] The proposition that the investigative process may have been designed to create an option for the termination of Anderson's contract is supported by an analysis of the reasons that motivated Ben Waldron to implement a formal process. The effect of Ben Waldron's evidence (T2-156; T2-123) was that Robinson’s sexual harassment claim needed to be subject to a formal investigation process because: (i) He had received "a formal allegation made, in writing, someone wanted to back up"; (ii) He needed to "protect all reputations"; (iii) The relevant persons worked in close proximity (in the same room); (iv) Two people working in the same team had issues with their manager. [118] In circumstances where Robinson only presented a written complaint because she was encouraged to do so by Ben Waldron, it is not open to Ben Waldron to rely on the existence of a formal complaint to justify the launching of a formal investigation. [119] Draper said in his evidence that when he spoke to Ben Waldron, Ben Waldron agreed that the matter should be investigated and that he wanted Robinson to "put it in writing formally" (T2-79). Robinson said that she acted on Draper's advice that "formalising it was the best way to go about it" (T1-32) and emailed Draper the following morning "agreeing to formalise the complaint" (T1-26). -- 24 of 32 -- 25 [120] Robinson said in her evidence in the proceedings that she did not feel comfortable in making a formal complaint and that she was reluctant for a number of reasons to make a formal complaint. She said that her purpose in raising the matter with Draper was because she wanted to get his advice on how to best handle the situation. She said that "if it was just me going to speak to John on a personal level and – and trying to sort it out or – I just needed a bit of a hand to know how to move forward" (T1-31). [121] It was unnecessary for Ben Waldron to encourage Robinson to formalise her complaint in that such a step was not a precondition to the employer taking appropriate action to bring to an end any inappropriate behaviour. Further there was no evidence to suggest that Robinson wanted anything other than the behaviour that she considered offensive to stop. What process ECP chose to validate Robinson's claims, was a matter for its discretion. [122] It is doubtful that the investigation process chosen would have served the purpose of protecting Anderson's reputation or guaranteeing privacy. Before the investigation had started, Robinson had said that she had discussed her grievances with five co- workers. When the investigation started it featured at least six formal interviews with the involvement of some support persons. Further during the course of the process, Robinson, Morris and Anderson were progressively told to work from home, while Anderson was also suspended on 24 July 2015. Most of this activity was occurring across three or four days in a small office where only 21 employees worked. By the time that the investigation had ended, more than half the staff of the Caboolture Office (ten confidentiality agreement signatories plus Felicity Waldron and Gerard Perret) had some level of familiarity with the complaints. [123] Neither am I satisfied that the working arrangements of Anderson, Robinson and Morris was a factor favouring the conduct of a formal investigation. In my view the fact that the three worked together in a small office, was an operational or interpersonal dynamic in which a requirement that individuals lodge formal complaints against each other was likely to have had a divisive and polarizing effect on the individuals concerned and diminish the prospects of restoring a functional working relationship. [124] While Felicity Waldron delivered a rather opaque rationalisation of the reasoning underpinning a choice between a formal approach and an informal approach, she appeared to agree that where the protagonists worked in the same area she would be cautious about going down a formal path (T2-41): "… so they’re actually working very closely with each other, so going – we were very cautious about going down a formal path versus an informal approach. If we could go through it with mediation and just saying – sitting down, saying, “You know, this is how I feel. This is how you’ve made me feel. Was that your intention?” You know, you can sort of – like, we try to resolve things that way first." [125] Felicity Waldron also provided other evidence (T2-43) about circumstances where an informal approach would be preferred. She said that she told Morris in the lunch room when he complained about Anderson's behaviour, that he should inform her if it happens again and that HR would get involved "so that we can mediate it". Felicity Waldron also said (T2-69) that with the benefit of hindsight, when Morris told her -- 25 of 32 -- 26 that Anderson had made inappropriate comments to Robinson, she would have asked questions and delved further that "we most definitely would've been able to nip in this the bud (sic), probably with a mediation". [126] In his evidence in the proceedings (T2-121) Ben Waldron addressed how he thought his investigation might unfold. He prefaced his remarks by saying that while he did not think Anderson would have done what was alleged, he would conduct the investigation with an open mind which contemplated three possible outcomes: (i) A compromise outcome could emerge in circumstances where Anderson might respond by saying that he did not believe that he had behaved inappropriately but accepted that if he had offended Robinson he was sorry for that, in which case some form of mediation might be appropriate to restore the relationship; (ii) Robinson's complaint was vindicated; or (iii) That after talking to the staff that Robinson said had witnessed the alleged behaviour, Robinson's version might found to be false. [127] This rationalisation appears to me to be perfectly reasonable and logical. The difficulty for the appellant's case is that Ben Waldron did not adopt this approach. Principally he failed in two areas. Firstly, he failed to create an environment in which Anderson might have been provided with an opportunity to make appropriate concessions which could have led to an apology and mediation. [128] What Ben Waldron did do was present formal allegations to Anderson over the phone; direct Anderson to attend a formal interview accompanied by a support person the next morning; and dispatched a follow-up email formally detailing the allegations to be answered and the investigative procedure to be adopted. Whether by design or otherwise, this was a process that mitigated against, if not precluded, any outcome which encouraged Anderson to make concessions and tried to mediate the differences surfaced in Robinson's complaint. [129] Secondly, Ben Waldron did not fully test the veracity of Robinson's version of events before presenting formal allegations to Anderson. Had Ben Waldron done so he would have concluded (on the record of interviews) that the "lesbian" comment was not corroborated by Loge, and that there were some inconsistencies in Robinson's version about the "condom" comments. If these conclusions were considered in conjunction with Anderson's explanation about the "skirt" comments and the fact that at the time of making her complaint, Robinson was only speculating on what Anderson might have said about her dress, there was a basis for Ben Waldron to decline to fully substantiate the complaint. Such an outcome, in conjunction with other relevant considerations, should have steered Ben Waldron toward the outcome which favoured encouraging Anderson to make concessions and a consideration of mediation. [130] Ben Waldron's approach also appeared to be inconsistent with the ECP sexual harassment policy (Exhibit 27), which, on balance, favoured the adoption of step three in the internal complaints procedure which is set out in Clause 13 of the policy: -- 26 of 32 -- 27 (i) The starting point to resolving a complaint is to talk with someone. This can be your manager (or another manager) if appropriate; (ii) The manager may take immediate action; (iii) The manager may provide a range of options. One approach is to centre on the resolution of the issue, without deciding fault. The manager may speak to the person you are making a complaint about, to see if the situation can be resolved simply; (iv) Some matters are not resolved so easily, especially if the person being complained about denies or disputes the allegations, or the issues are complex. Your manager (or another manager if appropriate) may handle your complaint, or refer it to specialist human resource staff or engaged an independent external agency. [131] On any retrospective analysis, the complaint simply did not possess sufficient complexity to warrant the formal process put in train by Ben Waldron. The relevant factual findings could have just as accurately been surfaced by one on one discussions with Loge, Lazdins, Silver and Morris. [132] Given that the sexual harassment allegations were on the low end of the severity scale and given that Anderson's record was unblemished in the area, armed with the perspectives of Morris, Loge, Silver and Lazdins, a more proportionate response by Ben Waldron would have been for him to follow the sexual harassment policy and to "centre on the resolution of the issue, without deciding fault". Robinson's objective was to get the offending behaviour to stop. She was not maliciously motivated to destroy Anderson's career or reputation. Sensibly handled, Ben Waldron would likely have achieved this outcome without polarising positions, forcing resignations, and making a dysfunctional office setting unworkable. Deficiencies in the Investigation Process [133] That the employer was required to respond to the complaints made by Robinson and Morris is not in doubt. The question to be answered is whether the management action associated with the complaints was unreasonable or unreasonably taken. In this regard a number of questions or activities require attention: (i) Was it appropriate for Ben Waldron to encourage Robinson to file a formal written complaint; (ii) Should Ben Waldron have spoken to Loge, Lazdins and Silver before forming a prima facie view about the veracity and gravity of the allegations, and before presenting the allegations to Anderson; (iii) The failure to present Anderson with specific dates relevant to the sexual harassment incidents; (iv) The presentation of allegations to Anderson over the phone; -- 27 of 32 -- 28 (v) The sending home of Robinson and Morris without providing a suitable explanation to Anderson. [134] Once Ben Waldron had spoken to Robinson, it was open to him to move quickly to test the veracity of the sexual harassment allegations before he discussed the matter with Anderson. The scope of the complaint was narrow in that Robinson cited only three incidents, and all incidents were said to be able to be corroborated. It would have been a simple exercise to speak to everyone before forming a prima facie view about the veracity and the severity of the complaint. These conversations would have informed Ben Waldron's decision making about the type of management response that would be most appropriately deployed. [135] There were other reasons why Ben Waldron should have extended his initial lines of enquiry beyond Morris. Firstly, Morris had only witnessed two of the incidents and his version of the condom incident varied from the version provided by Robinson. Secondly, it should have been apparent to Ben Waldron that there was likely to have been a level of collaboration between Robinson and Morris, given that they had a mutual interest in the prosecution of complaints against Anderson. [136] As it transpired, Ben Waldron only spoke to Robinson and Morris prior to presenting allegations to Anderson, and he deferred interviewing Lazdins, Loge and Silver until the following Monday, July 27, 2016. The notes of these meetings (Exhibits 42, 43, and 44) enable a retrospective view to be formed about whether Ben Waldron may have acted differently had he not deferred meetings with Lazdins, Loge and Silver. The notes disclose the following outcomes: (i) Lazdins’s contribution was limited to the condom comment. He said that during an exchange between Anderson and Robinson in the car park about four to eight weeks earlier, Anderson said "don’t forget to buy some condoms, they come in different flavours and colours". Lazdins also said that Robinson asked him the next day if he had heard the comment made by Anderson. By way of general observation, Lazdins did not think there was an issue in the workplace with "bad or inappropriate language" but said that if there was an issue it was in the lunch room; (ii) Silver said that he was a witness to inappropriate behaviour on Anderson's part about one and half weeks prior. He said while Robinson was out of the room, Anderson made a comment about how hard it was to concentrate with what Robinson was wearing and alluded to the pattern on Robinson’s skirt pointing towards a certain region. Silver said that over the two years that he had known Anderson, this was the first time that he had crossed the line and that until then the behaviour "was just jovial". He did not recall any other uncomfortable moments and stated that "it is generally just the guys joking". He said that Anderson may have been trying to be "one of the boys" and that he had not realised that he had crossed the line. He added that in the last three or four months Anderson had "become a bit shorter with people"; (iii) Loge said that she recalled only one occasion where Anderson had acted inappropriately. It was an incident which was not directed at anyone but that Anderson had taken a "joke too far". In terms of the flower incident -- 28 of 32 -- 29 she said that she was aware that flowers had been delivered to Robinson and she had heard comments about Robinson’s boyfriend. She did not volunteer any knowledge of a "lesbian" comment, but she said that a comment was made about the flowers which she regarded as a "water off the ducks back" comment, but she expected that the comment "would have been frustrating" for Robinson. Loge was familiar with a significant amount of gossip concerning Anderson but she correctly distinguished between first and second hand knowledge when she said, when asked whether Anderson was conducting himself correctly, "from what I have seen yes, what I have heard no". [137] In terms of the sexual harassment allegations against Anderson, the versions provided by Lazdins, Silver, and Loge would, on balance, have led Ben Waldron to conclude that: (i) Anderson had a propensity for inappropriate comment, but that such comments were isolated; (ii) Anderson did make the condom comment, but may not have said "maybe that would give her something to do through lunch"; (iii) Anderson did comment inappropriately about Robinson's skirt; (iv) Robinson’s version in terms of the "lesbian" comment was, at best, only indirectly corroborated by Loge. [138] In terms of the bullying allegations, while both Morris’s and Robinson's interviews provided prima facie support for an allegation of inappropriate or offensive behaviour, none of the observations proffered by Lazdins, Loge or Silver would have substantiated a claim of bullying. [139] While the views of Lazdins, Loge and Silver support a view that Anderson had behaved inappropriately, I think they provide a more balanced perspective in regards to severity. Further the ECP office was a relatively small office and both Ben and Felicity Waldron would have been able to contribute a view about behaviour in the workplace. This view would have been relatively benign. Leaving aside the prospect that ECP saw an opportunity to end Anderson's contract, it is difficult not to conclude that had Ben Waldron gathered all the information before acting, a reasonable and commensurate management response would not have included the process chosen by Ben Waldron. [140] Evidence in the proceedings (and after the event) confirmed that in terms of severity, Robinson's complaints were at the lower end of the scale. None of the comments complained about by Robinson were made in a one to one or in private setting where only Anderson and Robinson were in attendance and Robinson said that she never held any concern that Anderson might make any physical approach. She also accepted that she often worked late with Anderson and raised no concern about these interactions. Ben Waldron's interview with Robinson should have surfaced these points of differentiation in terms of any assessment of severity. -- 29 of 32 -- 30 [141] The failure of Ben Waldron to elicit specific dates for when the claimed harassment occurred was an omission that may have made it harder for him to form a view about the severity of the complaints in circumstances where the frequency of offending and the interval between offensive conduct would typically be a relevant consideration. In this case however it was not a significant omission in that Robinson had only commenced work at ECP in April 2015 and her complaint about the instances of inappropriate behaviour was not lacking in specificity. [142] Ben Waldron’s decision to present allegations to Anderson over the phone lacked sensitivity. He could have spoken privately in a face to face conversation with Anderson in which he would have been in a position to gauge Anderson’s reaction and form a view about any adverse health impacts. The allegations were unprecedented and, according to both Ben and Felicity Waldron, inconsistent with their reasonably long association with Anderson. Anderson was an important cog in the ECP wheel. He was known to be suffering from a medical condition and known to be taking medication for his condition. His circumstances warranted that Robinson’s allegations be raised with some sensitivity and presented in circumstances where Anderson's reaction could be monitored. [143] Ben Waldron acknowledged that he may have erred in failing to inform Anderson that he had instructed two of Anderson’s subordinates to leave work and not attend for work for some days (T2-167): "And you left Mr Anderson in his office with the two people answering to him that usually worked in the office, not knowing what was going on and why his staff had been sent home, didn’t you?---Fair point." [144] In his evidence in the proceedings Ben Waldron confirmed that he sent Robinson home on Tuesday 21 July 2015, while Robinson's evidence was that she was sent home after the meeting "so that it wasn't too uncomfortable working in the same office as John" (T1-29). The sending home occurred notwithstanding that Robinson had told Ben Waldron on 21 July 2015 that she was comfortable staying in the office. The record of meeting (Exhibit 12) recorded that Robinson was "happy to stay in the same office until the investigation concludes …". While not a great deal turns on it, Anderson's recollection was that both Robinson and Morris were sent home on the Wednesday (23 July 2015). [145] It was Morris's evidence that he went home immediately after the 22 July 2015 meeting. He said that Ben Waldron told him to work from home and that he did not want Morris and Anderson in the same room "while the investigation was going ahead" (T1-68). Anderson said that he was aware that Scott Morris was having a meeting with Ben Waldron. He said that after the meeting Morris told him that he (Morris) had to go home. Anderson said that both Robinson and Morris went home on the same day, but that Ben Waldron had not told him that they were being sent home. [146] It would have been foreseeable that Robinson's and Morris' departure from the office without explanation would have worried Anderson and caused him to speculate on the reasons. While in his evidence Anderson said that he thought that Morris and Robinson were in trouble (not himself), Ben Waldron would not have known this at -- 30 of 32 -- 31 the time, and his indifference to Anderson's circumstances is a further indication that Anderson's mental health was not a factor in Ben Waldron's approach. Conclusion [147] I am satisfied that Anderson's injury did not arise out of, or in the course of, reasonable management action taken in a reasonable way by ECP in connection with Anderson's employment. This determination is made in a context where, only two months prior to the investigation, Anderson needed to take time off work to address poor health caused by complications with medications and depressive symptoms. On balance, I find that Ben Waldron knew from Anderson's conduct at work that Anderson's psychological condition was functioning at less than the optimum level, and that he would have known that it was more likely than not that Anderson's medication problems were related to his psychological condition. Hall P dealt with the relevance to reasonable management action of a worker's susceptibility to stressors in the following terms: "With the repeal of the previous sub s. (5) there seems to be no reason why 'reasonable' in s. 34(5)(a) should not be treated as meaning 'reasonable in all the circumstances of the case', compare Opera House Investments Pty Ltd v Devon Buildings Pty Ltd (1936) 55 CLR 110 at 116 per Latham CJ and at 117 per Starke J. There seems to be no reason for concluding that the circumstances of the case do not include circumstances relating to the psychological makeup of the worker where those circumstances are known to the employer. It is not a matter of suggesting that management should speculate about the psychology of each of its workers if they are engaging in management action which may impact upon particular workers, or should require psychological evaluation of its workers. It is simply a matter of recognising that fixed with knowledge of a worker’s makeup a reasonable person would take that knowledge into account in assessing what is a reasonable way in which to implement an otherwise reasonable decision." 2 [148] While Anderson's condition had improved and stabilised across June and July 2015, Ben Waldron should not have lost sight of Anderson's frailties when he deliberated on how to respond to Robinson's complaint. The possibility that Anderson might remain vulnerable psychologically to events causing stress and anxiety was objectively foreseeable particularly in circumstances where Anderson was confronted with an investigative framework which emphasised the severity of the allegations and implied that termination of employment was a viable outcome. [149] Despite this, there is no evidence indicating that Ben Waldron took Anderson's condition into account when responding to the complaints made. This is evident in his decisions to set in train an investigative process which was not proportionate to the offences alleged; to inform Anderson of the complaints over the phone; to avoid attempting to resolve the complaints in an informal face to face discussion with Anderson; and to send Anderson's subordinates home without explanation. These decisions were likely to exacerbate Anderson's stress and anxiety. 2 WorkCover Queensland v Kehl (2002) 170 QGIG 93 -- 31 of 32 -- 32 [150] A dilemma about whether the complaint created an opportunity for ECP to terminate Anderson's contract led ECP to over-react to the complaint; to predetermine the level of severity; and to design an investigative framework which would support a decision to terminate employment for serious misconduct. As a consequence, the framework was deficient in that not only was it not commensurate with the facts and circumstances associated with an objective assessment of the complaint, but it failed to direct itself to the most appropriate remedy for the complaint and it contributed to an escalation in Anderson's depressive condition. A reasonable and proportionate approach would have steered Ben Waldron in a different direction in which it was open to Ben Waldron to tell Anderson that the complaint did not warrant termination and to focus on changing Anderson's behaviour and restoring a functional working relationship between Anderson, Morris and Robinson. [151] In making determinations about reasonableness, management is not held to a standard of perfection and the test to be applied acknowledges that blemishes in management action may be inevitable. In this case however I am not persuaded to accept that management failures, or errors in judgment, should be correctly characterised as blemishes. In my view a global assessment of all the relevant facts and circumstances supports a conclusion that Anderson's injury arose out of, or in the course of, management action that was unreasonable, or from management action that was unreasonably taken, or both. [152] The appeal is dismissed and the regulator's decision dated 3 December 2015 is confirmed. The matter of costs is reserved. [153] I order accordingly. -- 32 of 32 --