Craig v Qantas Airways Ltd & WorkCover Qld [2001] QSC 385

SUPREME COURT OF QUEENSLAND CITATION: Craig v Qantas Airways Ltd & Anor [2001] QSC 385 PARTIES: MAXWELL CRAIG (plaintiff) v QANTAS AIRWAYS LTD (ACN 009 661 901) (defendant) and WORKCOVER QUEENSLAND (third party) FILE NO: No 5462 of 1997 DIVISION: Trial Division DELIVERED ON: 12 October 2001 DELIVERED AT: Brisbane HEARING DATES: 13, 14, 16, 17, and 20 August 2001 JUDGE: Helman J CATCHWORDS: EMPLOYMENT LAW – CONTRACT OF SERVICE AND RIGHTS, DUTIES AND LIABILITIES AS BETWEEN EMPLOYER AND EMPLOYEE – LIABILITY OF EMPLOYER FOR INJURY TO EMPLOYEE AT COMMON LAW – SAFE PLACE OF WORK TORTS – NEGLIGENCE – DUTY OF CARE – SPECIAL RELATIONSHIPS AND DUTIES – EMPLOYER AND EMPLOYEE – plaintiff employee claimed damages against defendant employer for mental disorder resulting from breach of duty – whether injury resulted from conduct alleged COUNSEL: P.A. Kronberg for the plaintiff D.O.J. North S.C. and R.C. Morton for the defendant J.S. Miles for the third party SOLICITORS: Watts & Company for the plaintiff Moray & Agnew for the defendant Bradley & Co. for the third party -- 1 of 38 -- 2 [1] HELMAN J: The plaintiff is a flight attendant employed by the defendant airline company. He is forty-eight years old, having been born on 15 July 1953. He has been an airline employee since 1984. He alleges that the defendant has breached the contract of employment he has with it, has been guilty of negligence, and has been guilty of breaches of its statutory duty to him to ensure his health and safety at work imposed by s. 9 of the Workplace Health and Safety Act 1989 (to 1 July 1995) and s. 28(1) of the Workplace Health and Safety Act 1995 (from 1 July 1995). The plaintiff alleges that as a result of one or more of those breaches of duty ‘in or about September or October, 1995’ he suffered an injury, a chronic adjustment disorder with depressed mood. He alleges that he: was diagnosed as suffering from the disorder ‘with mixed anxiety and depressed mood’ on 18 January 1996; has suffered and continues to suffer from depression, poor sleep, nervousness, and anxiety; has lost income as a result of his injury and is liable to lose income in the future; and has otherwise been damnified. [2] It is common ground on the pleadings between the plaintiff and the defendant that: on or about 4 April 1995 an aboriginal flight attendant, Ms Tanya Sandy, complained to Mr Eliot Tester, the defendant’s flight attendant manager in Brisbane, that the plaintiff, in her presence and hearing, referred to another aboriginal flight attendant as a ‘didgeridoo’, as a result of which Tanya Sandy had her feelings and sensibilities hurt, was highly offended, and considered the remark derogatory and unprofessional; the defendant treated the complaint as one of harassment; and the defendant, through its servants and/or agents, in particular Mr Tester, instituted a procedure to investigate the complaint and attempted to resolve, as between the plaintiff and Ms Sandy, the complaint of harassment: see the plaintiff’s amended statement of claim, delivered on 12 November 1999, paragraphs 5, 6, and 7, and the defendant’s defence, paragraph 1. Paragraphs 8 and 9 of the plaintiff’s amended statement of claim concern complaints he made to Ms Elizabeth Pearce, now the defendant's human resources manager and in 1995 its equal employment opportunity co-ordinator: 8. On or about 25 October 1995, the Plaintiff complained to Liz Pierce, the Defendant’s Equal Opportunity Coordinator, of harassment against him, that he, a homosexual, had been harassed by two persons employed by the Defendant, namely Glenys Sibley and Bernice Appleby as a result of comments made by them to him. 9. On or about 29 November 1995 the Plaintiff’s complaint was investigated by Elliott Tester and upon his interviewing Glenys Sibley and Bernice Appleby, found that there was no substance to the complaint and took no further action with respect to the Plaintiff’s complaint. (In that quotation and others appearing in these reasons I have reproduced errors of spelling without correcting them or drawing attention to them.) The defendant’s response to those paragraphs, in paragraph 2 of its defence, is as follows: 2. In relation to paragraphs 8 and 9 of the Statement of Claim, the Defendant admits: (a) That a complaint such as that alleged in paragraph 8 of the Statement of Claim was made; -- 2 of 38 -- 3 (b) That it was investigated by Elliott Tester; (c) That there was no substance to the complaint; and (d) That the Defendant took no further action with respect to the Plaintiff’s complaint other than its investigations by Tester. The plaintiff alleges, and the defendant denies, that as a result of the ‘investigation and procedure’ adopted by the defendant with respect to Ms Sandy’s complaint, the failure to proceed with the plaintiff’s complaints as pleaded in paragraphs 8 and 9 of the amended statement of claim, and the plaintiff’s perceiving that he was being victimized, harassed, discriminated against, and unfairly treated by the defendant he suffered the injury I have referred to: see the plaintiff’s amended statement of claim, paragraph 10, and the defendant’s defence, paragraph 3. The defendant denies that it was guilty of the breaches of duty alleged, particulars of which are given in paragraph 11 of the plaintiff’s amended statement of claim, and that the plaintiff’s injury resulted from them: see the defendant’s defence, paragraph 3. I shall return later to the particulars of the breaches of duty alleged by the plaintiff. I shall discuss later also two other issues raised in the defendant’s defence (in paragraphs 4 and 5), and the issues between the defendant and the third party. [3] Ms Sandy’s complaint to Mr Tester was in writing, in a letter dated 4 April 1995 which, formal parts omitted, was as follows: I’d like to inform you of an incident that occurred on Sunday the 26th March 1995. I was signing off in the computer room after completing a tour of duty. Unknown to myself was Joanne Coe an Aboriginal trainee with her trainer in the next room. I had never met Joanne before. As I walked from the computer room around the corner I passed F/A Max Craig and Psr Andrew Ball. On passing, Andrew made a comment “One of your sisters is in there”. Not seeing Joanne I didn’t know what Andrew meant, I myself sometimes refer to other colleagues Aboriginal and non Aboriginal as ‘sisters’ because of certain friendships formed from over the years, so at this stage I had no reason to be concerned. It was the following comment from Max Craig that made me feel very sad and angry. He replied “You know a didgeridoo!”. It was quite loud and I am sure Joanne Coe would have heard it. I am sure that Max did not realise he was hurting me by making such a comment however I found this comment highly offensive, very derogatory and unprofessional, not to mention being insensitive to other peoples feelings. I have been motivated to report this incident as there have been other occasions during my fifteen year career with Qantas where I have experienced a great deal of hurt because of ignorant prejudice. -- 3 of 38 -- 4 Qantas has a large and diverse staff. Because of this steps should be taken to ensure our staff are more considerate and aware of all colleagues cultural and lifestyle backgrounds. [4] At the relevant time the defendant had a policy of trying to eliminate harassment of employees and others. To that end a document dated 30 April 1992 and headed ‘Harassment’ had been circulated under the authority of the defendant’s Director of Human Resources. It remained unchanged until October 1997. At the beginning of the document the following appeared: QANTAS PROMOTES A WORKING ENVIRONMENT FREE OF INTIMIDATION, THREAT AND HUMILIATION. HARASSMENT TO EITHER EMPLOYEES OR MEMBERS OF THE GENERAL PUBLIC IS NOT TOLERATED. BRANCH DIRECTORS, DEPARTMENTAL MANAGERS AND SUPERVISORS ARE ACCOUNTABLE FOR ENSURING THAT PROPER STANDARDS OF CONDUCT ARE MAINTAINED IN THE WORK PLACE AND THAT HARASSMENT IN ANY FORM IS NOT ACCEPTABLE. COMPLAINTS OF HARASSMENT MUST BE INVESTIGATED IMMEDIATELY BY THE SUPERVISOR OR MANAGER WITH DUE REGARD TO THE SENSITIVITY OF THE ISSUE AND THE PRIVACY AND RIGHTS OF THE INDIVIDUALS CONCERNED. APPROPRIATE COUNSELLING AND DISCIPLINARY ACTION ARE TAKEN AS NECESSARY. There was then a heading ‘Guidelines’ under which was set out a number of forms of harassment including ‘verbal abuse’, ‘unwelcome and offensive remarks, jokes or innuendoes’, and ‘displaying . . . racist material’. There followed these statements: Harassment, especially sexual harassment, can involve behaviour which is regarded as common place or “normal” to some and may be meant in good fun but may be deeply distressing or offensive to others. Under both Federal and State legislation in Australia, sexual harassment is a form of discrimination and is illegal. Harassment on the grounds of race, marital status, pregnancy, physical and mental disability and sexual preference can also amount to unlawful discrimination. In addition, in some states, harassment on the grounds of political or religious conviction can also amount to unlawful discrimination, however, regardless of whether a behaviour is illegal or not, any behaviour which creates an offensive work environment is not acceptable. Under the heading ‘Role of Managers and Supervisors’the following appeared: Managers and supervisors have a key role in preventing harassment through sensible supervisory and leadership practices. Their own standards of conduct should be exemplary and their staff should be -- 4 of 38 -- 5 aware of and comply with expected standards. Both managers and supervisors need to be familiar with the avenue for complaints resolution and country managers should be aware of local legislation/guidelines relating to harassment. Supervisors are expected to halt any harassment of which they become aware. Depending upon the circumstance, such action could include calling attention to the Company’s policy, counselling the employees concerned, or taking more direct disciplinary action. A separate publication, “Harassment – Its No Joke – Guidelines for Managers and Supervisors” has been produced and distributed to all Managers. This should be referred to when handling complaints of harassment. To discuss the options for resolving harassment complaints, supervisors can contact the Manager EO. Under no circumstances should a complaint of harassment be ignored or treated as frivolous. To prevent the possibility of victimisation of complainants and legal action for defamation, supervisors should take all reasonable steps to maintain confidentiality and ensure the privacy and rights of the individuals concerned. Under the heading ‘Rights and Responsibilities of Individuals’this appeared: Any employee who experiences harassment can do something about it. The best action to take will depend on the nature and severity of the harassment and how long the incidents have been occurring. Some of the avenues available include: • letting the person responsible for the behaviour know the behaviour is offensive and unacceptable • seeking the assistance of the supervisor or manager in resolving the matter • lodging a formal complaint to management • if the matter is not resolved satisfactorily within Qantas, lodging a complaint with the relevant Anti-Discrimination body. Information on the full range of options is provided in the booklet, “Harassment – Its No Joke”. To discuss the options in more detail staff should contact their supervisor/manager, Manager EO union, or in areas where they exist, the nominated Harassment Support Staff. [5] Ms Sandy’s complaint set in motion an investigation by officers of the defendant with a view to bringing about a reconciliation between Ms Sandy and the plaintiff. Beginning with a letter dated 5 April 1995 to the plaintiff from the defendant and signed by Mr Tester there was correspondence between the plaintiff and defendant concerning Ms Sandy’s complaint. Meetings were arranged and held until, at a meeting on 10 August 1995, an agreement was reached between the plaintiff and the defendant. The plaintiff agreed inter alia to send Ms Sandy a letter of apology. The agreement did not, however, dispose of the matter of Ms Sandy’s complaint, because the plaintiff did not send her a written apology and the defendant’s officers -- 5 of 38 -- 6 concluded that they should take further action. The defendant accordingly sent the plaintiff a letter dated 23 October 1995 and signed by Mr Tester: Further to our meeting on the 10 August 1995 where you agreed to forward a letter to Ms. Tanya Sandy apologising for remarks made to her on Sunday, 26 March 1995 and my letter dated 22 September requesting you honour this commitment by 29 September 1995. I am advised to date Ms Sandy has not received such an apology. Your failure to comply with the agreement in attempt to resolve the matter will now result in disciplinary action as per FAAA Award Clause 27c being taken. You are accordingly required to attend a meeting on Wednesday 25 October 1995 at 4pm in the office of Shayne Nealon – Cabin Crew Operations Manager, QCC 4. As per Clause 27c, you are entitled to be accompanied by an FAAA representative at this meeting. Crewing have booked you on QF531, 25 October, signing on at 1325 hours (the flight departing at 1355 hours). You will receive a roster change advising of same. Following the meeting on 25 October 1995 the defendant sent the plaintiff the following letter, dated that day and signed by Ms Shayne Nealon, cabin crew operations manager: This is to confirm my advice to you today that investigations made by Miss Liz Pearce, Equal Employment Co-ordinator, have found that a complaint of harassment and victimisation made by Ms Sandy against you have been substantiated. Your agreement, at a meeting on 10 August 1995, to write and apologise to Ms Sandy in attempt to resolve this matter has not been complied with. As discussed at our meeting today behaviour of this nature is unacceptable under current legislation and Company Policy. Any future behaviour which does not comply with Company Policy in relation to harassment, discrimination or equal opportunity issues will result in a review of your employment. As advised at the meeting today you will be required to attend an appropriate training course on equal employment opportunity, discrimination and harassment issues. You will be advised of training dates in the near future. A copy of this letter will be placed on your personal file. -- 6 of 38 -- 7 [6] By a letter dated the same day, 25 October 1995, to Ms Pearce, the plaintiff formally made the complaints against employees of the defendant senior in rank to him who are referred to in paragraph 8 of his amended statement of claim: I wrote to you on 14 August 1995. In that letter I furnished you with deatails of two accounts of harassment that I have been subjected to, by two co-workers, in the past. As I mentioned in that letter, since the threat that was made to me by a co-worker, and denied by her at a meeting with Qantas management, I have had to continue working on a day to day basis, with this person, in what would be to say the least a very uncomfortable situation. This atmosphere of discomfort is present also when I find myself working with Purser Applby . In your official capacity, with Qantas, I would now ask you to investigate on my behalf, both of these situations, as I now am making them both official complaints. As mentioned to me over the past several months, Qantas is legally obligated to protecting their employees in the work place. As I feel I am being harassed as a result of these two issues I now ask you to ensure I have a safe working environment. I feel a letter of genuine apology from both of these co-workers is therefore required. As I am on annual leave during the month of November I will be uncontactable until December should you need to speak with me, my apologies for this delay but I have commitments interstate I am sure this delay will enable you the extra time you may need to obtain the written apologies. I thank you again for you help in this matter. The letter of 14 August 1995 to Ms Pearce was as follows: After our meeting on 10 August 1995, I now feel compelled to write to you regarding a matter that has caused me a great deal of concern for some time. At the meeting you echoed what had already been expressed to me by both Ms. Pauline Heinonen (Employee Relations Manager Cabin Crew) and Mr. Eliot Tester (Cabin Crew Manager BNE), that Qantas has a legal obligation under Federal Law to ensure that all their staff are protected, within their workplace, from harassment. Therefore, I am sure you will appreciate my disappointment when I say that, three management personnel within a large company like Qantas, a company whos whole public perception is it's staff, appear more concerned about their legal obligations to their staff and appear to forget their moral obligations to their staff. -- 7 of 38 -- 8 Whilst opperating flights 514/533 on 29 October 1994, I had comments made to me by Prs. Bernice Applby, comments that I found totally uncalled for and offensive towards the passanger concerned. A male passanger, who appeared to be very colourful and flamboyant both in manner and appearance, was referred to, by Prs. Appleby, as ‘one of your kind’. I asked Prs. Appleby to elaborate on her comment, she flapped her wrist and once again made the comment ‘one of your kind’.Latter during the flight she questioned me as to whether or not two male members of management were gay or not. My standard reply to such questioning is simple ‘I think thats a question that only that person can answer!’ As a result of the lack of support I was given on 24 January 1994, whilst attending a Stage 1 Greivence meeting, by the Company, I could see no reason to take the matter any further. I felt that Prs. Appleby would simply deny making the comments and once again the Company would push the matter aside. At the meeting on 24 January 1994, Prs. Glenice Sibley in the presence of Ms. Liz Stewart (Cabin Crew Manager BNE), Ms. Yvonne Urban (FAAA) and myself, Prs. Sibley denied harassing me some months earlier, in the Brisbane F/A lounge, I told Ms. Stewart at the meeting how Prs. Sibley had come up to me in the lounge and said ‘you think your smart but we’ll get you’, this was denied by Prs. Sibley and the Company were happy to leave it at that. I was prompted by this comment to, in future, whenever I had to fly with Prs. Sibley, work at the other end of the aircraft and to avoid any unnecessary conversation with her. After the comments made by Prs. Appleby on 29 October 1994, I felt I would take the same approach and try and avoid working in close proximity to her. Diversity, tolerance, multicultualism all appear to be the catch phrases that we are being told that this is how we must live in the ’90s. The amazing thing about this is that the homosexual community have been living this way for decades. As a community, homosexuals are not restricted by the boundary of race, colour, religion etc. we live in harmony together and in fact we embrace the differance in people from backgrounds that are unlike our own. This can be shown more so in resent times with the onset of AIDS, and how as a community we support others who are in need of help. As I stated to you at our meeting I am very aware of other peoples feelings regarding harassment because I have grown up the victim of hrassment by society. -- 8 of 38 -- 9 I drew your attention to the two experiences mentioned earlier in this letter simply to show you why I feel that your continual reference to Qantas’s legal obligation seems to be a little one sided. In 1993 amendments were made to the Federal Sex Discrimination Act 1984, these amendments included a section regarding Victimisation. I ask you now, ‘why is it that in 1994 when I brought to Qantas’s attention the fact that I was being harassed by a fellow employee, Qantas choose to ignore this matter, yet now when the situation is alledged to be in the reverse Qantas are now quoting their legal obligations?’ I still feel I am owed an apology from both these women but unfortunatly Qantas does not share my point of view. In response to the plaintiff’s complaints, a letter dated 6 November 1995 was sent to him signed by Ms Pearce on behalf of the defendant: I am in receipt of your complaint dated 25 October, 1995, which has been forwarded to Eliot Tester, Cabin Crew Manager, Brisbane, for investigation, as requested. If you have any enquiries in relation to the investigation Eliot can be contacted on 867 3328. Mr Tester interviewed Purser Appleby on 10 November 1995 and Purser Sibley on 17 November 1995. Records of the interviews were made and signed by Mr Tester and the purser in each case. [7] The result of the investigation of the plaintiff’s complaints was conveyed to him by a letter dated 29 November 1995 signed by Mr Tester on behalf of the defendant: Liz Pearce, Equal Opportunity Co-ordinator, has forwarded me copies of your correspondence requesting complaints of alleged harassment from colleagues be investigated. The details of the alleged incidents were documented in your letter to Ms Pearce dated 14 August, 1995 and relate to a comment made by Purser Sibley on an unspecified date in late 1993 and subsequently raised at a meeting on 24 January, 1994 with the then Cabin Crew Manager, Liz Stewart, FAAA representative Yvonne Urban and yourself. The second complaint alleged comments were made by Purser Appleby on 29 October, 1994. You requested to have these matters investigated as a result of a feeling of discomfort when working with the Pursers mentioned. You also requested the matter be investigated while you were on leave during November. Given the detail provided in your letter to Liz Pearce, dated 14 August, 1995, I was able to proceed with the investigation, as requested. -- 9 of 38 -- 10 As you are aware, the Company takes complaints of harassment very seriously. Accordingly, both Purser Appleby and Purser Sibley were interviewed regarding the complaint made against them. Bernice Appleby was concerned to learn of the remarks attributed to her and commented that she had no recall of making such comments, especially as a year had elapsed since the alleged incident taking place. Bernice also stated that it was not her intention to offend or be insensitive to others feelings. She does not recall making the alleged comments. Glenice Sibley was also interviewed regarding the complaint made against her. Glenice denies having made such remarks and has absolutely no recall of this being raised at the meeting on 24 January, 1994. Having investigated your complaint, and taking everything into consideration, I am unable to substantiate the claims made. You may be aware that Brisbane-based Pursers have been involved in individual briefings, the purpose of which is to generally raise awareness about proper workplace standards and behaviours. These individual briefings have included discussion of harassment, the company’s policy and the Pursers’preventative and responsive role. In addition to this, Flight Attendants are also currently being rostered to attend a one-day Business Seminar. This seminar includes a module on managing diversity, equal employment opportunity and harassment issues. If you wish to discuss this matter further, please contact me on (07) 876.3328. [8] In what I have said so far I have given merely an outline of the outcomes of Ms Sandy’s and the plaintiff’s complaints. It is now necessary for me to relate in some detail the events which led to what followed from the complaints. [9] The incident that gave rise to Ms Sandy’s complaint occurred in the flight attendants’ lounge in Sydney on 26 March 1995. In the witness box the plaintiff gave an account of the incident which was somewhat at variance with Ms Sandy’s narrative, but not significantly so: he said that he said only the word ‘didgeridoo’, and not, ‘You know a didgeridoo’. The difference is of no moment since the insult lay in the reasonable perception of the metonymical use of the word ‘didgeridoo’to refer to an aboriginal person. The plaintiff swore that he did not know at the time he uttered the word that Ms Sandy was of aboriginal descent, but it is clear that he did know that Ms Coe was. He saw Ms Coe coming through the lounge and then said the word. The plaintiff swore that he had no idea why he said ‘didgeridoo’; it was, he said, ‘a word that just came out’. He denied that he had ‘any intention with respect to the word’. -- 10 of 38 -- 11 [10] After the defendant received Ms Sandy’s complaint, a letter dated 5 April 1995 was sent to the plaintiff signed by Mr Tester on behalf of the defendant. So far as it is relevant it was as follows: We have received a complaint of alleged harassment by you against another Flight Attendant. We view any such complaints seriously and the procedure is to review the complaint with the individual concerned to allow you the opportunity to present your understanding of the situation. Accordingly, I have organised a meeting in Sydney with yourself, myself and Pauline Heinonen, Employee Relations Manager Cabin Crew, on Friday, 7 April at 1100 hours at which you will be advised of specific details. Crewing have booked you on QF511/7 April departing 0840 and on a return flight Sydney/Brisbane QF532/7 April departing 1440. [11] The proposed meeting of 7 April 1995 was postponed after the plaintiff telephoned Mr Tester and said that he had had advice from his union, that he would not be attending because he had not been given ‘sufficient time’, and that under the relevant award he should have been provided with a copy of the complaint against him. The plaintiff had consulted officers of the Flight Attendants’ Association of Australia including Ms Marnie Sluice, the Queensland branch secretary. A letter dated 6 April 1995 was sent to the plaintiff, signed by Mr Tester on behalf of the defendant. So far as it is relevant it was as follows: Further to our telephone discussion today, I have now changed the appointment to Monday, 24 April, 1995 at 1100 hours in my office and apologise for any concern this may have caused. You will consequently also be displaced from your duty. Complaints of this type are generally of a very sensitive nature. Accordingly, it is the company’s approach to discuss the matter rather than display a sensitive document. Complainants often find it difficult to come forward with such a complaint and we do not wish to subject them unnecessarily to any further stress in the process. Also at this stage we are simply hearing both sides of the issue. If after discussion the matter is unable to be resolved, then formal procedures may come into play. You can be fully assured that you will have every opportunity to present your views in regard to the complaint. This is an investigation and possible conciliation matter, not a disciplinary issue at this point in time. [12] The plaintiff then requested that the day of the meeting be changed from 24 April 1995 to 12 April 1995. Mr Tester responded on behalf of the defendant to that request in a letter dated 7 April 1995: -- 11 of 38 -- 12 I have received your message advising that you would prefer a meeting on 12 April at 3 p.m. Unfortunately, Pauline Heinonen is not available until Monday, 24 April and therefore that is the earliest date that we can meet. If you want to change the time within that week, I can make contact with Pauline to arrange a suitable time. In a memorandum dated the same day, Mr Tester told the plaintiff that a copy of the letter of complaint would be made available. [13] On 15 or 17 April 1995 – the exact date is of no consequence – the plaintiff still had not been supplied with a copy of Ms Sandy’s letter of complaint, but in the course of a brief conversation with her in the flight attendants’ lounge at Brisbane airport she revealed to him that it was she who had complained. She explained the substance of the complaint: the offensive use of the word ‘didgeridoo’ in her presence and that of Ms Coe. Ms Sandy told the plaintiff that she was of aboriginal extraction. The plaintiff expressed his sympathy for aboriginal people, and then told Ms Sandy that it was necessary that something be done because his job was ‘on the line pending a tribunal’. Ms Sandy, who had not intended her complaint to have such serious consequences, then accepted an apology proffered by the plaintiff. [14] On 17 April 1995 the plaintiff telephoned Mr Tester and told him that the matter had been resolved and that Ms Sandy would, as far as he knew, withdraw the complaint. Mr Tester told the plaintiff he would confirm with Ms Sandy her acceptance of the plaintiff’s apology and then confirm that in writing to the plaintiff. [15] On 21 April 1995 Mr Tester sent a memorandum to the plaintiff in which he said that he had not heard from Ms Sandy ‘as yet’, and confirmed that the meeting proposed for 24 April 1995 was cancelled. [16] On 25 April 1995 Ms Sandy spoke on the telephone to Mr Tester, and asked whether the plaintiff was in danger of losing his job. Mr Tester told her that at that ‘stage of the game’there was ‘no way’the plaintiff’s employment was ‘on the line’. When Ms Sandy heard that she was furious, not because she wished the plaintiff to be disciplined – she did not, and had made that clear to Mr Tester in a telephone conversation about the time she made her written complaint – but because she concluded that the plaintiff had lied to her. She felt humiliated, thinking that the plaintiff had no respect for her and had treated her like a fool. She still wanted an amicable conclusion to the matter, however. [17] On 3 May 1995 Mr Tester sent a memorandum to the plaintiff setting 9 May 1995 as the date for a proposed meeting: Further to your advice on 17 April, 1995 that you had the opportunity to discuss with Tanya Sandy her complaint regarding remarks made by you that she considered offensive. As you are aware, this is a sensitive issue and one that the Company considers seriously. While your efforts to resolve the matter are -- 12 of 38 -- 13 appreciated, I would like to meet with you to discuss the matter and bring it to a conclusion. I have arranged a meeting for Tuesday, 9 May at 1100 hours here in my office. The plaintiff spoke to Ms Sluice, who sent this letter, dated 5 May 1995, to Mr Tester: On behalf of Max Craig with his authority I am writing to inform you that Max wishes to proceed with the planned meeting set down for the 9th May 1995 at 1100 hours. Max requests the presence of Tanya Sandy and Andrew Ball at this meeting to resolve the matter and also to discuss how situations of this kind will not happen again between fellow workers. To reiterate the facts both said and acknowledged by you. Max and Tanya were of the belief they had resolved any differences between them verbally in the F/A Lounge on the afternoon of the 15th April 1995. Max apologised for any remarks which may have upset or hurt her. Tanya accepted this verbal apology. Both parties have informed the Duty Managers in Sydney and yourself in Brisbane. Based on the above information both parties believed the case was closed. Max is now feeling victimised as the company will not accept the verbal apology which on the 15th April 1995 was accepted by Tanya. Although the company representatives wish to follow the guidelines of their Sexual Discrimination and Harassment policy at the end of the day the parties concerned resolved the matter. The continuance of this issue will only draw the parties apart instead of bring the parties together. I am requesting the company to reconsider their position of further meetings and accept the resolved situation as it stood on the 17th April 1995. [18] On 7 May 1995 the plaintiff received a copy of Ms Sandy’s letter of complaint. He attended the meeting on 9 May 1995. Present were: Mr Tester, Ms Heinonen, Ms Sluice, and the plaintiff. The plaintiff gave his side of the story of what happened on 26 March 1995, challenging the accuracy of the allegation that he had said, ‘You know, a didgeridoo’ and asserting that he had said only, ‘Didgeridoo’. The plaintiff asked why Ms Sandy was not present, and was told that it was ‘too sensitive’ for her to be there, that it might upset her. Mr Tester made the following notes, which I accept as accurate, of what was said at the meeting: -- 13 of 38 -- 14 Meeting – 1100hrs, 9 May 1995. Attendees; Marnie Sluice Max Craig Pauline Heinonen Eliot Tester Eliot opened the meeting. Reviewed steps to date. 1/ Letter of complaint received from Tanya. 2/ Meeting date set for the 24/4 to hear Max Craigs reply to the complaint. 3/ 17/4 ET advised by Max, via the telephone, as a result of a meeting between Tanya and Max, Tanya’s complaint had been discussed and an apology had been extended to Tanya and accepted. 4/ ET advised that he would need to confirm her acceptance and would confirm in writing to him. 5/ 21/4 – memo to Max from ET advising he had not heard from Tanya but based on what he had told me the meeting on the 24/4 would be cancelled. 6/ 25/4 ET discussed with Tanya her meeting with Max, she confirmed Max had apologised. She was requested to confirm this in writing, however she appeared reluctant. 7/ ET requests Pauline Heinonen to contact Tanya to avoid further pressure on her. Pauline Heinonen explained; 1/ Company Harassment Policy explained 2/ Copy given to Marnie and Max. 3/ Company and individual liable. 4/ Process – complaint received - contact other party to accept their version of events. - aim is to reach conciliation - the matter is confidential and between the two individuals and the company is therefore reluctant to distribute copies of complaint. It is important that the matter remain confidential to avoid added pressure to other party. - this interview is part of the process and is not disciplinary action 5/ In some respects the issue has been resolved 6/ Clause qouted “Harassment, especially sexual harassment, can involve behaviour which is regarded as common place or “normal” to some and may be meant in good fun but may be deeply distressing or offensive to others” -- 14 of 38 -- 15 Max Craig – ‘the remarks were not made, they have been discussed and apologised for”. Max believes that as a result of his discussion the matter was closed and that there is no need for action as far as the company is concerned. Pauline Heinonen – We would need to discuss with Tanya to explain Max’s position. Max Craig – Advises he has taken action outside the company. This is harassment by the company. There are no bad feelings between he and Tanya, everything has been explained and dropped. When put to the test the company needs to review its policy. Pauline Heinonen – Advises the company has embraced the legislation. It has spent time looking at how people should be aware and is developing a series of programmes. E.E.O. Workshops have been held. It is very important that we understand our responsibilities. We are meeting so that Max has the chance to explain his understanding and for Tanya’s feelings to be conveyed. Max Craig suggested that all parties get together to avoid such issues in the future between colleagues. As far as Max is concerned it is over and if there is any doubt in Tanya’s mind, she should meet face to face, if she is genuine that is what she would do. Max is not prepared to go any further unless they sit down ‘face to face’. Pauline explained that ‘face to face’ is not always the answer or appropriate. If Tanya is not happy with this suggestion and decides not to meet we will support her. Max advised he had made his decision. Pauline advised we would talk to Tanya and advise Max of outcome in writing. Normal procedure is to investigate and advise outcome. It was reiterated the importance that discussions remain confidential to avoid pressure on the other party. Meeting closed approx 1200hrs. Following the meeting the plaintiff was upset and he consulted Dr Stephen Horner at the Wamuran Shopping Centre. I shall return to the details of that visit later. [19] On 17 May 1995 Mr Tester sent a memorandum to the plaintiff concerning Ms Sandy’s presence at a further meeting: In response to your request at our meeting on 9th May 1995, we have contacted Tanya. We advised Tanya that you wished to meet with her in our presence and she would be happy to do this. -- 15 of 38 -- 16 I shall advise you of the venue, time and date when the details have been arranged. The plaintiff responded to that memorandum in a letter dated 19 May 1995 to Mr Tester: Responding to your letter 17 May 1995. As mentioned at our meeting 9 May 1995, I feel in my mind that this matter has been settled between Tanya and myself. Therefore, if Qantas still feel a further meeting is required, than as mentioned on 9 May 1995, all parties need to be present at this meeting. All parties include Tanya Sandy, Purser Andrew Ball and myself as well as Marnie Sluice (F.A.A.A.). I await your reply to this matter. The proposed meeting was then postponed until early July because the plaintiff was on sick leave. The postponement was recorded in a letter dated 30 May 1995 to the plaintiff and signed by Mr Tester on behalf of the defendant: The conciliation meeting planned for late May will now be postponed until early July due to your being unavailable until that date. As indicated previously, we aim to achieve a satisfactory conciliation for both parties concerned. [20] The plaintiff then wrote a letter dated 21 June 1995 to Mr Tester: By letter dated 5 April 1995, I was notified that certain allegations of alleged harassment of another staff member had been made against me. Since that date that I received that letter, there has been an exchange of a number of letters between Qantas and myself and in addition, I was required to attend a meeting on the 9 May 1995 at your office, at which time the matter of the alleged harassment was discussed. I record that present at that meeting were Ms Pauline Heinonen (Employee Relations Manager), Ms Marnie Sluice (F.A.A.A.) Mr. E. Tester and myself. It appears to me that Qantas’ principal concern as expressed in the correspondence, and the meeting of the 9 May 1995, has been its commitment, as it sees it under current legislation, to ensure the provision of a safe working environment for all Qantas employees. Yet, despite the fact that both myself, and the complainant in the matter, Ms Tanya Sandy have notified Qantas on a number of occasions that the alleged harassment has been resolved privately between the parties, it appears that Qantas Management is intent upon pursuing disciplinary proceedings against me. -- 16 of 38 -- 17 In a letter dated 5 May 1995, which was forwarded to Qantas from FAAA, it was stated “to reiterate, the fact both said and acknowledged by you. Max and Tanya were of the belief that they have resolved any difference between them verbally in the FA Lounge on the afternoon of the 15 April 1995.” Ms. Sluice goes on to say “Max is now feeling victimised as the Company will not accept the verbal apology, which on the 15 April 1995 was accepted by Tanya.” Qantas’ letter of the 6 April 1995 states, “We do not wish to subject them (the complainant) unnecessarily to any further stress in this process”, yet, it is I, the accused who is now being submitted to stress in view of the fact that a proper conciliation of the differences between myself and Tanya Sandy has not been convened, and Qantas has refused to accept that we have resolved the matter between ourselves. It is therefore the case that I am being subjected to additional and unnecessary stress as a consequence of this whole experience, which is having an adverse affect upon my working performance. From the foregoing I am drawn to the conclusion that Qantas has a second agenda in this, in that they are not particularly concerned about resolving the dispute between myself and Tanya Sandy. That dispute has already been resolved. It seems to me that Qantas is intent upon prosecuting me, and making an example of me rather than resolving an inter-staff difference. Accordingly, I am of the view that the matter has now moved from that of being a case of conciliation between two work colleagues, to a case of prosecution and harassment of a Qantas employee by Qantas itself. I therefore consider that if Qantas wishes to pursue this line of action, they will need to bring an action before the Industrial Relations Commission where an independent arbitrator can oversee the facts and make an independent and unbiased judgment. Pursuant to the rules of natural justice, I am entitled to a hearing, and I am also entitled have that hearing before a tribunal which will be unbiased. As Qantas itself has made the allegations against me, it can hardly be said that the same organisation could hear and determine the allegations against me in an unbiased fashion. Pursuant to current legislation, Qantas has a duty to all employees, including myself, to ensure that they work in a safe environment. Any reluctance by Qantas to refuse to treat this matter with the same amount of concern as indicated previously can only be seen as a failure in its obligation under current legislation in ensuring that a safe working environment exists for all employees, and that all employees should be treated equally. Further, if Tanya Sandy has decided to withdraw her acceptance of my apology, then she has the -- 17 of 38 -- 18 right to pursue any action against me in a civil court of law should she wish to do so. Accordingly, I therefore request that Qantas either pursue the alleged charges against me in the Industrial Relations Commission, or withdraw the charge of alleged harassment on the basis that the matter has already been resolved between myself and Tanya Sandy. I await your reply. The defendant responded to the plaintiff in a letter dated 30 June 1995 and signed by Mr Tester: Your letter dated 21 June 1995, was received by me on 26 June, 1995, and I was concerned to learn of your understanding of the process to date in reaching a possible conciliation between yourself and Tanya. As explained in previous correspondence and at our meeting on 9 May, 1995, it is our intention to investigate the matter to hear both sides of the issue and achieve a successful conciliation. I must reassure you that this is not a disciplinary matter, at this stage. If the matter is not resolved after discussion between the two parties, formal procedures as per Clause 27 of the Award will apply. Our meeting planned for 24 April, 1995 to discuss the alleged harassment was subsequently postponed as a result of your advice that an apology to Tanya had been accepted. While your efforts to resolve the matter were appreciated, it was after my discussion with Tanya that it was deemed necessary for the process to continue. At our meeting on 9 May, 1995 you suggested to help resolve the matter, both parties should meet ‘face to face’. It was following this meeting Tanya was contacted and agreed to meet with you. Following your return from sick leave, I will be proceding with arrangements for a meeting. By this process it is our intention that this matter be resolved satisfactorily for both parties. There followed a letter to the plaintiff dated 26 July 1995, a copy of which was sent to Ms Sluice, signed by Mr Tester on behalf of the defendant: Further to our meeting on 9 May, 1995 I am writing to advise that a time to meet with Tanya Sandy has been arranged for Monday, 31 July, 1995. The meeting is to be held at 3 p.m. on the 1st floor, Church Street, Sydney. You will receive a roster change with flight details. -- 18 of 38 -- 19 Liz Pearce, the EEO Co-ordinator, will be replacing Pauline Heinonen, who is absent on recreation leave. Should you require any assistance or information regarding the meeting, please contact me. On the plaintiff’s instructions his solicitors wrote a letter, also dated 26 July 1995, to the defendant’s director of cabin crew at Mascot: We have received instructions to act on behalf of Mr. M. Craig of Mt. Kilcoy in Queensland. On the instructions that we have received from our client, it appears that certain allegations of harassment have been made against our client by another staff member and that such allegations are essentially unfounded and untrue. We note that despite our client’s several letters to your company requesting that any charge against our client either be withdrawn or heard and determined, no such action has actually been taken by his QANTAS superiors. Accordingly, our client has instructed us that we furnish you with a period of fourteen (14) days within which to either furnish a retraction of the allegations made against our client, or remit the matter for hearing at the Industrial Relations Commission. May we have your response at the earliest opportunity. The plaintiff went to the place arranged for the meeting at the appointed time, and found Mr Tester, Ms Pearce, and Ms Sandy and her husband there. He handed Ms Pearce a letter dated 31 July 1995 that he had signed and addressed to Mr Greg Bee, who was the defendant’s director of cabin crew at Mascot, and immediately departed. The letter said: I received on 29 July 1995 a letter from Mr. Tester regarding a meeting which is to be held in Sydney at 3p.m. today. I have spoken to my solicitor about this meeting. It would appear that Qantas are choosing not to write a letter retracting allegations made by them at this point in time. We therefore feel any further discussion regarding this matter would be better heard in the Industrial Relations Commission. [21] By a letter to the plaintiff dated 2 August 1995 and signed by Mr Tester, 1.00 p.m. on 3 August 1995 was set as the time for a further meeting concerning Ms Sandy’s complaint: You are rostered to attend a meeting on Thursday, 3 August at 1pm in the office of the Cabin Crew Manager Brisbane. The purpose of the meeting is to discuss a complaint of harassment made against you. Details of the complaint have been supplied and also discussed at a meeting on 9 May, 1995. -- 19 of 38 -- 20 As per award Clause 27C, you are entitled to be accompanied by another Flight Attendant of the same employer, or an officer or employee of the Association. We understand you have legal representation and you may wish to consult them. Your failure to attend this meeting will result in formal disciplinary action being taken against you as per award Clause 27A and B. [22] By a facsimile transmission dated 2 August 1995 to the plaintiff’s solicitors from Ms Pearce, the defendant responded to the plaintiff’s solicitors’ letter of 26 July 1995: We are in receipt of your letter of 26 July with respect to the above. In relation to your client a complaint of harassment was made against him by a co-worker in early April. For your information Qantas has in place internal procedures to deal with complaints of harassment. Any form of harassment is against company policy and all complaints are taken seriously and investigated in accord with our procedures. We have sought to investigate the complaint against your client and therefore organised to interview your client as part of the Company’s procedures. A meeting was scheduled for mid-April. On 17 April your client informed the Cabin Crew Manager, Brisbane, Eliot Tester, that the matter had been settled amicably between the complainant and himself with your client apologising for any hurt he may have caused the complainant. Upon further discussion with the complainant she informed us that this apology was accepted under duress. As you would be aware complainants have a legal right not to be victimised in any way when making a complaint. Accordingly we continued to attempt to investigate this complaint and a meeting was held on 9 May, 1995 between your client, Eliot Tester, Cabin Crew Manager Brisbane; Pauline Heinonan, Employee Relations Manager Cabin Crew; and Marnie Sluice, Queensland Branch Secretary, Flight Attendants Association of Australia. At that meeting your client indicated that the only way he would be involved in any formal procedure to resolve this matter would be by way of a face to face meeting with the complainant. We indicated that although this is not always the best way to resolve complaints of this nature but that we would organise a meeting between the parties in an attempt to conciliate and investigate the allegations. Your client was agreeable to this course of action, and indicated his willingness to attend such a meeting in correspondence to Eliot Tester on 22 May, 1995. Accordingly a meeting was scheduled at the earliest available time ie 31 July, 1995. Your client was invited to bring along with him his own representative. -- 20 of 38 -- 21 During the course of June your client wrote to the Cabin Crew Manager indicating that he felt he was being victimised. We informed your client via letter dated 30 June, 1995 that we were investigating this matter and that we were attempting to accommodate him by organising a meeting between the complainant and himself and that this procedure was not a disciplinary action. At this meeting, requested by your client on paid time and at the Company’s expense, your client handed Mr Tester a letter and informed Mr Tester that this matter was in the hands of his solicitors and he would not attend the meeting as organised. The Company have a legal obligation to investigate all complaints. This is what we have been endeavouring to do for several months. Accordingly we have arranged to meet with your client in accordance with the Company’s grievance handling mechanism. A meeting has been set down for Thursday 3 August, 1995 at 1 pm in Brisbane with myself and the Cabin Crew Manager. Your client is encouraged to bring a representative to that meeting. If you wish to discuss this matter further please contact the writer on 691-2005. [23] Following a request from the plaintiff’s solicitors, the proposed meeting of 3 August 1995 was postponed to 10 August 1995, as recorded in a letter dated 4 August 1995 to the plaintiff and signed by Mr Tester on behalf of the defendant: This letter is to confirm that our meeting, scheduled for Thursday 3 August, 1995, was cancelled at your lawyer’s request. The meeting has now been rescheduled for Thursday, 10 August, 1995 at 12.00 noon in my office. As per Award Clause 27c, you are entitled to be accompanied by another Flight Attendant of the same employer, or an officer or employee of the Association. It is not company policy for a representative outside the company and not a representative of the FAAA to attend an investigation of this nature. However, at your request, you are entitled to bring your legal representative, if required. As you are aware, the purpose of this meeting is to investigate a complaint of harassment that has been made against you. You will receive a roster change advising the same. Please contact me should you require any further information. [24] On the same day, 4 August 1995, Ms Sandy sent a document headed ‘SEQUENCE OF EVENTS’ to Mr Tester: -- 21 of 38 -- 22 On April 17th I accidentally bumped into Max Craig during a transit while operating back to Sydney. He asked me if I knew anything about a harassment charge involving Joanne Coe and himself. I told him that it was in fact me that had made the complaint. Max’s reaction to this was one of shock and surprise. When he asked why, I explained to him that I thought his derogatory remarks were callous and insensitive, and lacked respect for Joanne, myself and our background. I became upset and hurried off. Max followed me and we continued the conversation. He told me that his job was on the line pending a tribunal. I told him that if that indeed that was the case then I would accept his apology and withdraw my complaint. I later learnt from Eliot Tester that Maxs’ job was never under threat and he had in effect lied to me in order to secure an apology and drop the complaint. Shortly after this I received a phone call from Sydney supervisor Tim Stapleton. He had Max in the office and Max wanted to speak to me about retracting the letter. I told Tim it was too late as the letter was already with management. Why Max asked Tim to ring me on his behalf is still a little puzzling. I then received a call from Employee Relations Manager Pauline Heinonen, and related the story to her. I told her that the whole affair was becoming difficult and distressing for me. I then requested a letter from Max Craig in which he acknowledged his initial comment about Joanne Coe and an apology for it. I found out later that he had refused to do this, saying he had already apologised. Max then requested a face to face meeting on the 9th May. He did not attend as he was on sick leave. A second meeting was scheduled for 31st July. Max arrived, presented a letter and immediately left. I would like to finally reiterate that all I’ve ever wanted from this, was for both parties to meet and resolve this matter simply and quickly. The result should be one of reconciliation and respect. Max should be made aware of the racial villification laws that protect people from comments such as his. I hope to hear from you soon. I accept that document as a generally reliable account of the events referred to, except that Ms Sandy is inaccurate in her reference to the meeting of 9 May 1995. She probably confused that meeting with the one proposed for late May. [25] A meeting was held on 10 August 1995, as I have related. Present were: Ms Pearce, the plaintiff, Ms Sluice, and Mr Tester. A record of what passed at the meeting was made by Mr Tester: Interview opened at 1200 hours. Elizabeth Pearce opened the meeting by explaining that a formal complaint of racial harassement and discrimination had been -- 22 of 38 -- 23 received from Tanya Sandy. Ms Pearce explained that under the Company’s harassement policy we had an obligation to investigate all formal complaints of harassement. The Company’s procedures in investigating complaints harassement were then outlined. Elizabeth also explained that both parties have rights and that the meeting was an attempt to achieve conciliation between the two parties. Max stated his position that an apology had been offered and that was all he could do. He also raised that he had been pursued by the Company over this matter, as a result of other issues he had raised with the company in 1992. The Company’s position was restated. Max acknowledged that during discussion he had used the word ‘didgeridoo’ and restated his position that the matter, as far as he as concerned, was resolved and should the Company not accept his position he would like to proceed to stage one of the disciplinary process. Discussion continued for some time and although Elizabeth confirmed her wish to achieve a satisfactory outcome for both parties Max was insistent that the disciplinary procedures as per Clause 27 of the FAAA award be implemented. Ms Pearce indicated that the apology was not accepted because Ms Sandy felt that she had been put under duress to accept the apology and that Mr Craig had also lied when asking that Ms Sandy accept the apology. This was restated several times. A break was taken at 1.05pm. On resumption of the meeting Elizabeth restated her position of wanting to conciliate and explained this was not the forum for unrelated issues. Elizabeth reiterated Max’s belief that he had done all he could to resolve the matter but the matter but the matter remained unresolved. Elizabeth asked Max if he had said to Tanya do you realise my job’s on the line for this and the matter was before a tribunal? Max confirmed that he did tell Tanya this and that he could lose his job and that the Company would take him to the Industrial Relations Commission. Max Craig stated that he, of all people, was aware of harassment. He also asked how many ways can you say sorry and that he believed Tanya was not going to accept his apology. -- 23 of 38 -- 24 Max advised that Qantas should commence the disciplinary process as nothing we could say say or do would fix it the problem. Elizabeth Pearce reiterated she was attempting to conciliate and would like his view of what happened. Max Craig stated Tanya knows what happened and he knew what happened (re; the apology) and nothing would make him apologise again. Elizabeth reaffirmed her position to investigate the matter and at this stage did not know what would be suitable to Tanya and that Max could try a written apology. Max again stated he had already apologised. Elizabeth repeated that she was trying to conciliate. Elizabeth reconfirmed Tanya felt that the apology was accepted under duress. Elizabeth advised that a way to settle the matter may be by way of a written apology. Max asked that if he apologised in writing would everything be removed from his file. Elizabeth offered to consider this option. Marnie Sluice advised Max had considered this option initially but was reluctant as he felt a sincerely written apology would be held against him. Elizabeth commented that if a letter was written a major stepping stone would be achieved. A break in discussion was then taken. After the break and following discussion with Marnie Sluice it was suggested to Max that a way to resolve the matter was by way of a written apology and Max’s attendance at a cross cultural training awareness programme. This option was agreeable to Max. On the basis of a letter of apology and attendance at a cross cultural awareness course it was agreed consideration would be given to removing all correspondence from Max's file. Max Craig commented that two people can resolve issues with the Company’s involvement, but the company must check to see if people are comfortable with this process before getting involved. -- 24 of 38 -- 25 Elizabeth confirmed that an option to resolve a complaint is for the parties to resolve it between themselves but that this is not always an option as often a complainant does not feel comfortable confronting the alleged harasser. Agreement reached – written apology from Max to Tanya Max to attend course Consideration of removal of all correspondence from file. Elizabeth to feedback to Marnie Sluice as soon as possible with decision re; note on file. A record of an interview and attempted conciliation with Max Craig. The result of the meeting was then that the plaintiff undertook to send a written apology to Ms Sandy and to attend the course in return for consideration by the defendant of his request that all correspondence relating to Ms Sandy’s complaint be removed from his file. Ms Sandy, although not present at the meeting, agreed to that resolution of the matter of her complaint. [26] Soon after the meeting, in the plaintiff’s letter dated 14 August 1995 to Ms Pearce, he referred to the grievances he had against Pursers Appleby and Sibley: alleged harassment in October 1994 and late 1993 respectively. [27] Ms Pearce’s authority did not extend to her agreeing at the meeting to the removal of the correspondence. Following the meeting she referred the matter to Ms Nealon who authorized her to agree on behalf of the defendant to the removal of all documents referring to Ms Sandy’s complaint from the plaintiff’s file once the plaintiff had sent the written apology and attended a cross-cultural training day. Any reference to the complaint would be removed from the file. Ms Pearce conveyed that promise to Ms Sluice in a telephone conversation in late August 1995. But, according to the plaintiff, Ms Sluice told him that although all documents would be removed from his file a note indicating that there had been ‘an incident of harassment’ would be made on it. Having been told that, the plaintiff concluded that the defendant was intending to renege on the agreement, he said. In spite of that private reservation, the plaintiff did not write to the defendant about the agreement until after he had received a letter from the defendant, and in that response he made no mention of the defendant’s reneging. [28] The final agreement was recorded in a letter to the plaintiff dated 22 September 1995 and signed by Mr Tester on behalf of the defendant: I write to confirm the details of the agreement reached on 10 August, 1995 in a meeting between yourself, Liz Pearce, Equal Opportunity Co-ordinator, Marnie Sluice, Queensland State Secretary FAAA, and myself in relation to comments you made to Tanya Sandy. The details are as follows: 1. That you forward to Ms Sandy a letter apologising for the Comments you made to her on Sunday, 26 March, 1995. -- 25 of 38 -- 26 2. That you attend a Company run cross-cultural day; and 3. That the Company will remove all copies of correspondence in relation to this matter from your personal file. This agreement was made subject to confirmation of a number of details which were finalised during a telephone conversation between Ms Sluice and Ms Pearce on or about 28 August, 1995. I note that to date the apology, as agreed, has not been forwarded to Ms Sandy. In order to finalise this matter, we seek that you forward the agreed apology as soon as possible but not later than 29 September, 1995. Following the plaintiff’s receipt of that letter, he wrote this letter, dated 29 September 1995, to Mr Tester: To date I have received no less then three copies of the same letter, written by you, dated 22 September 1995. One could be forgiven for mistaking this in itself to be a form of harassment. Following our meeting on 10 August 1995, I felt that any agreement that may have been reached, on the day, was so under duress and total frustration on my behalf resulting from the continual harassment being directed towards me by Qantas. I wrote to Ms. Liz Pearce on 14 August 1995 and put to her several questions that I feel need to be answered. To this date I am still awaiting a reply to that letter and the questions asked in it. It would appear that the failure on the part of Qantas to reply to my letter as well as their reluctance to have this matter taken before an independent body for assessment only concretes my claim that Qantas is knowingly harassing a member of their staff. Once again I draw your attention to the 1993 amendments to the Federal Sex Discrimination Act 1984. [29] Then followed the defendant’s letter dated 23 October 1995 to the plaintiff, the meeting on 25 October 1995, and the defendant’s letter dated 25 October 1995. The meeting took place in Sydney. Present were: Ms Nealon, Mr Tester, Mr Colin Copley of the F.A.A.A., and the plaintiff. After the plaintiff received the letter of 25 October 1995 Ms Nealon told him that it was his ‘first warning’. [30] By a letter dated 6 December 1995 to Mr Tester, the plaintiff responded to the defendant’s letter of 29 November 1995: I feel that it is a sad indictment on Qantas, that the management of the Company are willing to show far more favourable treatment towards those staff members who experience temporary memory loss over those staff who are honest, because they have nothing to -- 26 of 38 -- 27 hide or feel guilty about, and admit to making idle remarks during conversation with fellow workers. On returning from annual leave this month, it came as no surprise to read of your findings, in your letter dated 29 November 1995 and I quote: ‘I am unable to substantiate the claims made’ Qantas has shown me no support over the last eight months, in fact, they have endeavoured to discredit me totally, this is reflected in the above quote from your letter. Over a period of seven and a half months, you yourself, along with several of the senior Qantas management have continually harassed me over the use of one word and yet in the short span of four weeks you alone have been able to come to the conclusion that you are unable to substantiate the claims and with that I am expected to let the matter rest. I feel the comments made at the time by Bernice Appleby were made with the intent to offend. Quoting from your letter: ‘Bernice also states that it was not her intendion to offend or be insensitive to others feelings’ For seven and a half months I too spoke these same words to management yet management refused to listen to me, I feel that they had already made up their minds that, because I had admitted to having said the word ‘didgeridoo’ that I must be guilty of harassment. This sentiment was evident in the letter from Ms Nealon in late October 1995. You then go on to state: ‘She does not recall making the alledged comment’, if she does not recall making the alledged comment, why is it then that she states: ‘that it was not her intention to offend’? After reading the booklet, distributed by Qantas, ‘Harassment It’s No Joke’, I could find nowhere in this booklet where it states that a complaint of harassment has to be made within a certain time span, therefore I can see no problem with the fact there being a twelve month period between the comment being made and the complaint being lodged. I felt offended by the comments then and I feel offended by them still. Not only because they were offensive about homosexuals but they where offensive about a passenger. A passenger that not only pays for Bernice’s wage but pays for your wage and mine as well. Regardless of this passengers style of dressing or his mannerisms I don’t see that Bernice has the right to label him as a stereotype. -- 27 of 38 -- 28 I expect Qantas to now follow the same approach to my complaint as they have done with complaints that have been lodged by other staff members in the past. Anything less then the same degree of commitment on the part of Qantas can only verify that, Qantas is NOT an equal opportunity employer and that Qantas have knowingly encouraged harassment between mambers of their staff. The fact that Qantas had been totally reluctant to take the matter regarding the alledged harassment by me towards Tanya Sandy, before an independent arbitrator indicates also that Qantas are knowingly harassing me. In the booklet: ‘Harassment It’s No Joke’ the section on conciliation quotes: ‘there is no need to label the person complained of as a “harasser” indeed he or she may not have intended to harass, even if the behaviour has been perceivee as harassment’. Ms. Nealon’s letter to me in late October, although in not so many words, has basicly labelled me a “harasser”, is this not going against the booklets teachings? I would now once again like to draw to your attention, that under both Federal and State legislation, sexual harassment is a form of discrimination and as such is illegal. Harassment on the grounds of sexual preference can also amount to unlawful discrimination. In recent years I have become open about my sexuality and even more so about my stance about the support needed for the victims of HIV/AIDS within the workplace. Qantas may state that they are an equal opportunity employer because they have employed homosexuals, but unfortunatly that is about as far as the equality extends. It is obvious not only to myself but to many others employed by Qantas that homosexuals are treated in a far less favourable manner then our hetrosexual collegues. Your letter suggests that I contact you if I wish to discuss the issues I see no need to discuss the matter, the facts are, I have been offended by remarks made to me by two fellow workers, I have brought this matter to the attention of you as per Company policy and now I expect the same degree of attention, as a homosexual employee, as has been displayed to my hetrosexual collegues in the past. Thus ensuring I have a safe working environment in which to work. Thanking you for your time. [31] The plaintiff’s complaints against Purser Appleby, now deceased, and Purser Sibley were referred to in a letter dated 14 December 1995 to the plaintiff signed by Mr Tester on behalf of the defendant. That letter, so far as it is relevant, was as follows: Your complaint to Liz Pearce, dated 25 October, 1995, regarding alleged comments by Pursers Appleby and Sibley was investigated -- 28 of 38 -- 29 and could not be substantiated. My letter dated 29 November, 1995 advising the outcome of my investigation suggested you contact me should you want to discuss the matter further. At no time have you attempted to discuss this matter with me and, as advised in your own correspondence, you did not wish to discuss the matter. As a result of our discussion on 12 December, I will now arrange a meeting with Bernice Appleby, yourself and the FAAA to resolve any remaining differences. I have compared your flying blocks and note that you will not be flying together during December. Marnie Sluice is on recreation leave in December and I will therefore arrange a meeting at the earliest possible time in January, 1996. The plaintiff’s complaints were the subject of another letter to the plaintiff, dated 17 January 1996 and signed by Mr Tester on behalf of the defendant. So far as it is relevant, it was as follows: I write further to your complaints regarding Pursers Sibley and Appleby. As stated to you in my correspondence dated 29 November 1995, and 14 December 1995, following a full investigation I was unable to substantiate the complaints. Following communiction to you of the findings of the investigation I became aware that you were not prepared to undertake rostered duties with Pursers Sibley and Appleby because you felt uncomfortable in their presence. As a result of this I attempted to resolve your uneasiness by arranging meetings on 9 and 11 January 1996, between yourself, FAAA representatives, myself, the pursers (separately) and on 11 January, Liz Pearce, the Company’s Equal Opportunity Coordinator. During the course of these meetings both Pursers gave a commitment to work with you on a professional and amicable basis. In an attempt to resolve the situation a proposal was made to you for a trial of two months working together with Purser Appleby. You would not consider this option. Notwithstanding these assurances, combined with Purser Sibley’s denial of alleged comments, no recollection by Purser Appleby of having made such remarks, and the Purser’s willingness to build a working relationship, you advised that the only way this matter could be resolved would be through a written apology. Your position was fixed and would not accommodate any resolution other than your stated position. This was disappointing for all parties concerned. -- 29 of 38 -- 30 It transpired during the course of these meetings that you linked your uneasiness and complaints of harassment directly to performance related matters previously addressed by these Pursers. This was the first time I was aware that your feeling of discomfort were linked to anything other than your original complaints of harassment. The Company has a responsibility to investigate all complaints of harassment that are received. Following an investigation the Company makes a finding and has the responsibility to then manage the results of these findings. Conciliation was organised as a means of finally settling these matters. In any conciliation it is understood that parties come to the table in a frame of mind that will assist this process. Your fixed position did not assist in resolving your own complaints – despite the fact that the Pursers were willing to work through the issues and listen to your concerns. There is now an obligation to look forward, to make every effort to resolve issues, to talk about your concerns when and if they occur to ensure professional standards of conduct are maintained and to develop and enhance working relationships. Accordingly you are expected to meet your obligations as a flight attendant and attend for all rostered duties as required. At our meeting on the 9 January 1996 you were requested to advise me if the dates 26 and 27 February were unsuitable for the agreed two day ‘Understanding Cultural Differences’ course. As it is now too late to build in the February blocks you will be attending on 25/26 March 1996. The course details will be provided at a later date and you will receive a roster change advising flight details as the course is conducted in Sydney. . . . Max, I think it is important for you to look forward and make sure that all effort is made to improve working relationships in the best interests of yourself, colleagues, and our customers. [32] It is convenient to deal now with the issues raised in paragraphs 4 and 5 of the defendant’s defence. [33] In paragraph 4 the defendant sought to rely on s. 44 of the Safety, Rehabilitation and Compensation Act 1988 (Cth) in support of a contention that the plaintiff’s claim, so far as it is based on any breach of obligation on the part of the defendant on or before 31 July 1995, is not maintainable. It suffices to say that Mr Kronberg, who appeared for the plaintiff, by reference inter alia to s. 35 of the Qantas Sale Act 1992 (Cth), demonstrated that the defendant cannot rely on s. 44 of the former Act, and the matter pleaded in paragraph 4 of the defendant’s defence was not pursued on behalf of the defendant. -- 30 of 38 -- 31 [34] In paragraph 5 of the defendant’s defence it sought to rely on provisions of the Workers’ Compensation Act 1990 in support of a contention that if the plaintiff suffered an injury on or about 4 January 1996 he was not entitled to bring this proceeding. An earlier version of the statement of claim than that which was before me at the trial alleged that the plaintiff had suffered an injury on or about 4 January 1996, but before the trial the allegation was amended to allege an injury suffered in or about September or October 1995. The matter pleaded in paragraph 5 of the defendant’s defence was accordingly not pursued before me. [35] On behalf of the defendant it was argued that ‘[i]t is established in Australia that a pure psychiatric injury must be occasioned by a shock in the sense of a sudden sensory perception’. Reliance was placed on Jaensch v. Coffey (1983) 155 C.L.R. 549 and Morgan v. Tame (2000) 49 N.S.W.L.R. 21. The latter decision was a decision of the New South Wales Court of Appeal (Spigelman C.J., Mason P., and Handley J.A). It was submitted that since there is not any evidence in this case of a ‘sudden affront’ to the plaintiff’s senses or ‘an assault on his psyche from the perception of some horrifying event or as a result of any calculated or cruel conduct that was intended or likely to induce an illness’ his claim must fail. On the view that I have taken as to the facts of this case it is not necessary for me to decide whether that submission has merit, but it appears to me that it does not, for reasons explained by Mason P. in another case decided by the New South Wales Court of Appeal: State of New South Wales v. Seedsman [2000] N.S.W.C.A. 119. His Honour explained at paragraph 164 et seq., why it is that the proposition that there must be a ‘shock’ in the sense of a sudden sensation is not applicable to cases in which reliance is placed on ‘independent duties’ such as an employer’s duties. It is perhaps worthy of note that the judgments in the two New South Wales cases were delivered on the same day, 12 May 2000. [36] In paragraph 11 of the plaintiff’s amended statement of claim there are six particulars (11(A)(i) to (vi)) of the alleged breach of contract, negligence, and breaches of statutory duty relied on with respect to ‘the investigation and procedure conducted by the Defendant concerning the Tanya Sandy complaint’. Particular 11(A)(iv), an allegation of failure to refer the plaintiff to counselling, was abandoned at the trial. There are two particulars (11(B)(i) and (ii)) given of the breach of contract, negligence, and breach of statutory duty relied on with respect to the rejection of the plaintiff’s complaints. 11(B)(ii), another allegation of failure to refer the plaintiff to counselling, was also abandoned at the trial. As I think is apparent from my account of what passed between the plaintiff and the defendant, it was not suggested that there was no necessity for the defendant to have a policy on harassment, and indeed the plaintiff himself sought to rely on it. The plaintiff’s allegations relate not to the existence of the policy, but rather the method used to implement it in his case. [37] Particular 11(A)(i) is ‘[f]ailing to accept that the personal apology given by the Plaintiff to Tanya Sandy on or about 15 April 1995 was a sufficient resolution of the complaint, needing no further investigation’. It is true that the defendant did not accept the oral apology given by the plaintiff on 15 or 17 April 1995 as sufficient to meet Ms Sandy’s complaint, but it was entirely reasonable for it to act as it did once Mr Tester had heard, on 25 April 1995, Ms Sandy’s account of her conversation with the plaintiff. Had the defendant not pursued the original complaint further it would have aggravated Ms Sandy’s humiliation and suggested that the harassment -- 31 of 38 -- 32 policy was nothing but windy hypocrisy. It follows that the plaintiff’s case based on particular 11(A)(i) fails. [38] Particular 11(A)(ii) is ‘[f]ailing to ensure that the Plaintiff was not subjected to undue stress in his being investigated for the complaint when Qantas knew or ought to have known that the Plaintiff was suffering stress as a result of the investigation’. That particular is elaborated by a reference to the sentence ‘Max is now feeling victimised as the company will not accept the verbal apology which on 15th April 1995 was accepted by Tanya’ in Ms Sluice’s letter of 5 May 1995 to Mr Tester, and by a reference to this passage in the plaintiff’s letter dated 21 June 1995 to Mr Tester: It is therefore the case that I am being subjected to additional and unnecessary stress as a consequence of this whole experience, which is having an adverse affect upon my working performance. From the foregoing I am drawn to the conclusion that Qantas has a second agenda in this, in that they are not particularly concerned about resolving the dispute between myself and Tanya Sandy. That dispute has already been resolved. It seems to me that Qantas is intent upon prosecuting me, and making an example of me rather than resolving an inter-staff difference. Accordingly, I am of the view that the matter has now moved from that of being a case of conciliation between two work colleagues, to a case of prosecution and harassment of a Qantas employee by Qantas itself. Those passages are clearly enough based upon misconceptions: first, that the plaintiff’s oral apology had put the matter of Ms Sandy’s complaint to rest, whereas the way in which it was proffered had in fact added to her humiliation; and secondly, that the defendant was intent on prosecuting the plaintiff, whereas he had been assured that no disciplinary action was then contemplated, as is shown by the defendant’s letter of 6 April 1995 to the plaintiff, Ms Heinonen’s explanation to the plaintiff at the meeting of 9 May 1995, and the defendant’s letter to the plaintiff of 30 May 1995. That conciliation and not disciplinary action was being pursued was reiterated in the defendant’s letter of 30 June 1995 to the plaintiff and its facsimile transmission of 2 August 1995 to the plaintiff’s solicitors. The defendant acted reasonably in pursuing Ms Sandy’s complaint and did all it could to bring the matter to an end by conciliation. Accordingly I am not persuaded that the plaintiff was subjected to undue stress. The plaintiff’s case based on particular 11(A)(ii) therefore fails. [39] Particular 11(A)(iii) is ‘[f]ailing to ensure that Tanya Sandy and Andrew Ball who were present at the time of the incident complained of were personally present at a meeting on 9 May 1995 so as to ensure that the complaint could be resolved early, without stress to the Plaintiff’. It is apparent from what was said on behalf of the defendant at the meeting of 9 May 1995 that the procedure adopted by it at the first meeting was to hear the version of the person whose behaviour was complained of in the absence of the complainant before proceeding, if that proved necessary. That was a reasonable procedure in my view. The meeting could of course have been earlier had it not been for the postponements necessary to accommodate the plaintiff’s wishes and Ms Heinonen’s schedule. The plaintiff’s case based on particular 11(A)(iii) therefore fails. -- 32 of 38 -- 33 [40] Particular 11(A)(v) is ‘[f]ailing to provide the Plaintiff with adequate notice of a meeting on 31 July 1995 so as to engender in the plaintiff a feeling that he was being victimised and/or harassed and/or treated unfairly by the Defendant’. There is no substance in that allegation in my view. The defendant had previously shown itself quite willing to postpone proposed meetings if requested, and there is no reason to suppose that had the plaintiff wished to have the meeting of 31 July 1995 postponed the defendant would have refused. Furthermore, it is relevant to note that in the plaintiff’s letter of 31 July 1995 addressed to Mr Bee there is no complaint concerning the brevity of notice. Clearly enough the plaintiff had had adequate time to consult his solicitor about the meeting. [41] Particular 11(A)(vi) is ‘[i]nstituting disciplinary proceedings against the Plaintiff on or about 23 October 1995 which could have been avoided if the Defendant had taken early and reasonable steps as pleaded in subparagraphs (A)(i-iv) hereof to resolve the complaint’. The defendant had taken considerable trouble to bring the matter of Ms Sandy’s complaint to a successful conclusion with the agreement on 10 August 1995 without resorting to disciplinary action. The defendant did not renege on the agreement, but the plaintiff did. His belief that the defendant was intending to renege does not withstand scrutiny: it was based on something he said he was told by Ms Sluice following her telephone conversation with Ms Pearce in late August 1995. Ms Pearce’s evidence was to the contrary of that suggestion, and Ms Sluice, although in the precincts of the court on 16 August last, was not called to give evidence. Furthermore, had the plaintiff’s failure to honour his promise of a written apology to Ms Sandy been brought about by his belief that the defendant intended to renege one might have expected him to refer to that circumstance in his letter of 29 September 1995 to Mr Tester, but he did not, confining himself to an assertion of duress and ‘total frustration’. The defendant had had the difficult task of balancing its concern for Ms Sandy with its concern for the plaintiff, and had patiently brought the matter to a conclusion acceptable to its two employees and consistent with its policy concerning harassment. Once the plaintiff adopted the stance he did after 22 September 1995 there was nothing the defendant could reasonably do, consistently with its harassment policy, other than to proceed to reprimand him. I therefore conclude that the plaintiff’s case based on particular 11(A)(vi) fails. [42] Particular 11(B)(i) is ‘[f]ailing to accept or take further action upon the Plaintiff’s complaint that he felt harassed by the conduct complained of such that the Plaintiff felt that he was being unfairly treated and/or he was being discriminated against by the Defendant’. That particular is elaborated by reference to the first, fourth, seventh, eleventh, twelfth, fifteenth, and sixteenth paragraphs of the letter dated 6 December 1995 from the plaintiff to Mr Tester. Again the defendant was placed in the position of balancing its concern for employees while seeking - properly - to apply its policy concerning harassment. The case of the complaints against Pursers Appleby and Sibley was different from that of Ms Sandy’s complaint against the plaintiff in that in the former case no admission was made, whereas in the latter the plaintiff had admitted using the word that gave offence. The defendant was unable to establish the facts alleged against the pursers and so took no action against them. The fact that the formal complaints were made long after the events in question – in the case of Purser Appleby nearly one year after, and in the case of Purser Sibley approximately two years after – is not without significance. It casts doubt on the -- 33 of 38 -- 34 plaintiff’s bona fides. At all events I am not satisfied that the plaintiff’s case based on particular 11(B)(i) can be sustained. [43] It follows that the plaintiff’s claim should be dismissed. I shall, however, record my findings on the plaintiff’s alleged mental disorder and on the quantum of any damages attributable to injury at work. [44] To support the allegation of an injury suffered in or about September or October 1995, the plaintiff relies on the evidence of Dr Geoffrey Leong, consultant psychiatrist, whom the plaintiff first consulted on 18 January 1996. Dr Leong’s opinion, summarized in a report dated 4 August 1999 to the plaintiff’s solicitors, was that after Ms Sandy’s complaint against the plaintiff and what followed that - described by Dr Leong as ‘[c]onflicts with the managerial staff of his employer’ - the plaintiff suffered from an adjustment disorder with mixed anxiety and depressed mood. Then, Dr Leong continued, ‘[t]he conflicts with his employer continued for more than 6 months and continued to cause him symptoms that perpetuated his illness. With the persistence of symptoms for this length of time, his illness is re- diagnosed as a Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. Thus, this clinical illness developed about September or October 1995’. In that report Dr Leong also expressed the opinion that there was no evidence to suggest that the plaintiff ‘had a previous pre-disposition to such a disorder’, and that it is possible ‘that an ordinary person could suffer the same or a similar clinical problem as this person, if placed in similar circumstances, or stressors’. The plaintiff has continued to consult Dr Leong since 18 January 1996, although there was a gap between 21 March 1996 and early February 1997. [45] Dr Leong’s description of the plaintiff’s condition plainly enough suggests that its cause is to be found in conflict between him and the defendant. No doubt that is the way in which the plaintiff gave his history to Dr Leong. As I assess the facts of this matter, however, there was no such conflict in the six months in question, except perhaps in the mind of the plaintiff. That suggests that the plaintiff suffered from a mental disorder not caused by the events beginning by his being notified of Ms Sandy’s complaint, but affecting him well before that and distorting his appreciation of those events. Evidence of such a mental disorder may be found in accounts given by the plaintiff in May 1995 to others. [46] When the plaintiff spoke to Dr Horner on 9 May 1995 he told the doctor he had taken action against the defendant in 1991 ‘for equal opportunity for single people vis-à-vis married couples’. The plaintiff said it had been unpleasant at work since, that he felt victimized, and that he was feeling increasingly stressed, irritable, and edgy. The plaintiff said he was driving his car aggressively and had not been sleeping well for months; he often felt depressed and tearful - although never suicidal. He was forgetful, frustrated, and short-tempered at home, he said. He ‘stated his belief that people at work were trying to wear him down so he would leave’. The genesis of the plaintiff’s condition, as he recounted it to Dr Horner, was then in 1991. In a letter dated 16 May 1995 to the Human Rights and Equal Opportunity Commission the plaintiff again mentioned 1991 as the year when he began to feel the adverse effects of stress: From 1984 and up until 1991 my work performance has always been of above standard. Since 1991 my work performance has been suffering and this is clearly because of the stress I have been -- 34 of 38 -- 35 subjected to by the [defendant] regarding false allegations being made about my work performance. In recent weeks, and as a result of the most recent incident, I have found it necessary to seek the help of a medical practicinor to help in the relief of stress. [47] Dr Francis Varghese, consultant psychiatrist and reader in psychiatry at the Graduate School of Medicine at the University of Queensland, examined the plaintiff on 9 October 1999, and, later, examined the working notes of Dr David Orth, a general practitioner consulted by the plaintiff, and Dr Leong. In a report dated 13 August 2001 to the defendant’s solicitors, Dr Varghese recorded his opinion, formed following the latter examination, that the plaintiff suffered from a chronic dysthymic disorder with episodes of major depression suggesting ‘a significant biological disorder although the episodes often require adverse life events’. In giving oral evidence Dr Varghese agreed that if the plaintiff had consulted a general practitioner on 9 May 1995 ‘complaining of unpleasantness at work since 1991, feeling victimised, feeling increasingly stressed, irritable, edgy, aggressive in a car, not sleeping for months’, that suggested evidence of a dysthymic disorder. [48] Giving proper weight to the evidence of Dr Leong, who had the opportunity to observe the plaintiff over a lengthy period, and bearing in mind that Dr Varghese saw the plaintiff only once, I nonetheless conclude that Dr Varghese’s diagnosis of the plaintiff’s condition is the correct one. If the facts of the dealings between the plaintiff and the defendant in 1995 were as the plaintiff presented them to Dr Leong and if there were no evidence to suggest that the plaintiff had a predisposition to mental disorder, then Dr Leong’s opinion could be regarded as more likely to be accurate than Dr Varghese’s. But taking into account the true nature of the dealings between the plaintiff and the defendant in 1995 and the plaintiff’s account of events from 1991 and their effect on him, which included sleeplessness for months before 9 May 1995, I conclude that Dr Varghese’s opinion should be preferred to that of Dr Leong. [49] It follows that the actions of the defendant’s officers in dealing with Ms Sandy’s complaint and the plaintiff’s complaints did not cause the plaintiff’s mental disorder, which had begun to manifest itself from 1991 and before Ms Sandy made her complaint. Any deterioration in his condition after he was notified of Ms Sandy’s complaint was the result of the natural progression of his disorder and is not, on my assessment of the evidence, an aggravation brought about by the actions of officers of the defendant. But of course even if the actions of officers of the defendant did cause some aggravation in his condition the plaintiff cannot succeed against the defendant because, as I have explained, their actions have not been shown to be wrongful. [50] The evidence shows that the plaintiff’s condition did not disable him for work in the six years following Ms Sandy’s letter of complaint, well after any effect attributable to the actions of the defendant’s officers complained of could reasonably be regarded as spent. -- 35 of 38 -- 36 [51] Despite the plaintiff’s evident antipathy to a number of fellow employees of the defendant from 1991 he has not sought other employment and has remained with the defendant until the present time - although he has been on sick leave from May this year, and, it appears, was on sick leave earlier, in March this year. He gave evidence that the defendant had ‘put’him on sick leave. He also gave evidence that he was stood down ‘on 20 April during sick leave by my doctor’, and that he received ‘a letter of notification from QANTAS telling me that I was stood down, held out of service for five weeks’. The evidence concerning the plaintiff’s absence from work from May is not completely clear, but it does seem that his absence is attributable to his mental disorder. [52] The plaintiff’s condition has deteriorated since early last year, partly it seems because of anxiety about these proceedings. When he was examined at the request of the defendant by Dr Varghese on 9 October 1999, the doctor recorded an opinion formed then in a report dated 4 November 1999, that the plaintiff showed paranoid and narcissistic traits but was not suffering from a mental illness: It is difficult to accept that he has any other psychiatric disorder in a sense that he has a condition that causes him disability. Undoubtedly there are issues of adjustment. The question is whether they have reached the level of disorder. It is difficult to conceptualise him as being disabled at the present time. There may have been times in his life over the last few years, where the level of psychological decompensation was such as to constitute adjustment disorder as suggested by Dr Leong, but this is clearly not long lasting. To my mind being angry with your employers or with a particular supervisor, or being unhappy at the state of affairs, even to the extent that it might cause intermittent distress does not constitute psychiatric illness. In any case the psychological issues appear to be a result of a complex interaction between personality factors in the patient and the work environment. . . . I do not believe that currently Mr Craig suffers from any psychiatric or psychological disorder, if disorder is taken to mean a state of decompensation resulting in significant disability. It is possible that at certain times over the last few years the situation has been of such magnitude, but if so it has clearly been transient as indicated by his capacity to remain at work and indeed his continuing to like his job despite the difficulties in his relationship with his superiors. The effect on the plaintiff of that examination and his reading Dr Varghese’s report is referred to in a letter dated 24 February 2000 from Dr Leong to Dr Orth: I am continuing to see Max for supportive psychotherapy on a regular basis presently to assist him cope with the stress he is experiencing while he awaits a date for a court hearing for his complaint about the manner in which he was treated by his employer, Qantas. Since I last wrote, he has seen another psychiatrist nominated by the legal team for Qantas, to provide them with an opinion. Naturally this opinion was more objective than my reports, and was seen by -- 36 of 38 -- 37 Max to be incorrect, and made prematurely. His anxiety and depressed mood deteriorated immediately after being provided with the report, but he eventually settled to his previous clinical state of persistent periods of anxiety and depression. I foresee that a fluctuating clinical course will continue, and I have discussed this with Max. We have negotiated to meet on a more regular basis to attempt to prevent dramatic exacerbations of his mood. This was the case when he was seen when only in crisis. He continues without the prescription of medication. I will inform you of clinical developments in due course. It is noteworthy that Dr Leong regarded Dr Varghese’s opinion as ‘more objective’ than his own reports, and also that the plaintiff was then receiving treatment without the prescription of medication. [53] In a letter dated 5 April 2001 to the plaintiff’s solicitors, Dr Leong recorded the deterioration of the plaintiff’s condition since his report in August 1999: His symptoms persist and presently affect more areas of his life. More recently the condition has impacted upon his personal life with a general social withdrawal. His occupational functioning is affected with the need to take leave of absence because of his condition. His work records will indicate that this person has taken very little sick leave until recently. [54] In a further report dated 26 July 2001 to the plaintiff’s solicitors, Dr Leong expressed the view that the plaintiff was then suffering from a major depressive episode: I am of the opinion that presently this person is suffering from a Major Depressive Episode. I have provided a previous opinion that this person suffered from Chronic Adjustment Disorder with Mixed Anxiety and Depressed Mood. I consider that the condition of this person has deteriorated at least over the preceding two weeks to the extent that the clinical features constitute a Major Depressive Episode. I consider that the Chronic Adjustment Disorder with Anxiety and Depressed Mood has developed from the stress of the workplace conflicts of 1995. The ongoing conflicts including the current civil litigation perpetuates that condition and has caused degrees of deterioration that the diagnosis of Major Depressive Episode could be made on other occasions including the current presentation. Earlier in the report Dr Leong mentioned that the provision of a definite date for the trial in August had increased ‘the symptoms of Mr Craig’; and later in the report he recorded that he considered that the then current episode of major depression would resolve with treatment, but added that clinical improvement would not occur until after the outcome of the trial was known. -- 37 of 38 -- 38 [55] In Dr Varghese’s report dated 13 August 2001 reference is made to Dr Leong’s having recorded in his working notes discord between the plaintiff and a man with whom he lives, leading Dr Varghese to mention ‘significant problems in Mr Craig’s long term relationship’that were contributing to his difficulties. [56] Since I am not satisfied that the condition from which the plaintiff suffers can be attributed to injury suffered at work, I assess the quantum of his damages for such injury at nil. [57] The defendant made its claim against the third party in the latter’s capacity as the successor in law of the Workers’Compensation Board of Queensland: see s. 542 of the WorkCover Queensland Act 1996. It is common ground between the defendant and the third party that on and from 1 August 1995 the defendant was the insured under a policy of insurance with the Workers’ Compensation Board of Queensland pursuant to s. 44(2)(b) of the Workers’ Compensation Act 1990. The policy covered the defendant’s legal liability existing independently of the Act to pay damages in respect of injury to a worker employed by the defendant, being a liability within the cover of accident insurance as it was defined in s. 5 of the Act. It is also common ground between the defendant and the third party that the third party has refused to acknowledge any obligation to indemnify the defendant against the plaintiff’s claim. [58] The defendant seeks the following relief against the third party: 1. A declaration that the Third Party is obliged to indemnify the Defendant against the claim of the Plaintiff herein. 2. Judgement against the Third Party for such amount, if any, as the Defendant is found liable to the Plaintiff including sums for interest and costs. 3. An order that the Third Party pay the Defendant’s costs, on an indemnity basis, of: (a) These Third Party proceedings; (b) The Defendant’s own costs of the defence of the action against the Plaintiff. Since I have found that the defendant has no legal liability existing independently of the Workers’Compensation Act 1990 to pay damages in respect of injury to the plaintiff the occasion has not arisen for making the second order sought. There remains for consideration, however, the question what order or orders for costs should be made as between the defendant and the third party. In the course of addresses I heard preliminary submissions on that matter but further consideration of it was deferred until after I deliver my reasons concerning the plaintiff’s claim against the defendant. -- 38 of 38 --