IN THE COUNTY COURT OF VICTORIA
AT Melbourne
COMMON LAW DIVISION	Revised
Not Restricted
Suitable for Publication	
GENERAL LIST		

Case No.  CI-18-02428

LINDA PATRICIA LLOYD	Plaintiff	
		
v		
		
HEALTHSCOPE OPERATIONS PTY LTD	Defendant	

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JUDGE:	HIS HONOUR JUDGE P GINNANE 	
WHERE HELD:	Melbourne	
DATE OF HEARING:	17, 18, 19, 20, 24 February and 5 March 2020	
DATE OF JUDGMENT:	16 December 2020	
CASE MAY BE CITED AS:	Lloyd v Healthscope Operations Pty Ltd	
MEDIUM NEUTRAL CITATION:	[2020] VCC 2032		

REASONS FOR JUDGMENT
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Subject:		TORT – NEGLIGENCE – CONTRACT

Catchwords: 	Duty of care – whether evident signs of distress – duty of care in conduct of work related investigations – whether policies subsequent to contract of employment incorporated by express reference - implied terms - whether reasonable care afforded plaintiff upon notice of distress – remoteness – adverse inferences

Cases Cited:	Johnson v Box Hill Institute of TAFE [2014] VSC 626; Swan v Monash Law Book Co-operative [2013] VSC 326; Jones v Dunkel (1959) 101 CLR 298; Brown v Maurice Blackburn Cashman [2012] VSCA 64; Tame v New South Wales (2002) 211 CLR 317; Johnston v Holland [2016] VSC 422; Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44; Czatyrko v Edith Cowan University (2005) 79 ALJR 839; State of Victoria v Kozarov [2020] VSCA 301; Hegarty v Queensland Ambulance Service [2007] QCA 366; Govier v The Uniting Church in Australia Property Trust (Q) [2017] QCA 12; Govier v The Uniting Church in Australia Property Trust (Q) [2018] HCA Trans 65; Spring v Guardian Assurance plc [1995] 2 AC 196; State of New South Wales v Paige (2002) 60 NSWLR 371; State of New South Wales v Seedsman (2000) 217 ALR 583; Bankstown Foundry Pty Ltd v Braistina (1986) 160 CLR 301; Hayes v State of Queensland [2017] 1 Qd R 337; Toll (FGCT) Pty Ltd v Alphapharm Pty Limited (2004) 219 CLR 165; Goldman Sachs JBWere Services Pty Ltd v Nikolich [2007] FCAFC 120;  McCormick v Riverwood International (Australia) Pty Ltd [1999] FCA 1640; McCormick v Riverwood International (Australia) Pty Ltd [2000] FCA 32; Riverwood International Australia Pty Ltd v McCormick [2000] FCA 889; Akmeemana v Murray [2009] NSWSC 979; Romero v Farstad Shipping (Indian Pacific) Pty Ltd (2014) 231 FCR 403; Westpac Banking Corporation v Wittenberg (2016) 242 FCR 505; McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James [2016] NSWCA 36; Bau v State of Victoria [2009] VSCA 107; Yousif v Commonwealth Bank of Australia (No 2) [2009] FCA 656; Barker v Commonwealth Bank of Australia (2012) 296 ALR 706; McDonald v Parnell Laboratories (Aust) Pty Ltd [2007] FCA 1903; Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; Gregory v Philip Morris Ltd (1988) 80 ALR 455; Byrne v Australian Airlines Ltd (1995) 185 CLR 410 

Judgment:		Proceeding dismissed.

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APPEARANCES:
	Counsel	Solicitors	
For the Plaintiff	Mr G A Worth with
Ms L Burke	Melbourne Injury Lawyers	
			
For the Defendant	Mr A D Clements QC with Ms F A L Ryan	Wisewould Mahony	

HIS HONOUR:
Introduction and overview
1	The plaintiff was born in 1954.  She was employed by the defendant at the Melbourne Clinic (“the MC”) as a receptionist and patient services provider, commencing in 1982.  The MC is a private treatment centre and hospital for patients who have a dependency or mental illness or who have otherwise been referred to it for specialist treatment.
2	The plaintiff claims that over a relatively short period of time between January 2012 and June 2012, she was bullied by the finance manager of the defendant, Trent Stewart (“Stewart”). She claims that the defendant owed her a duty of care in undertaking and managing investigations conducted on its behalf by Stewart in response to a number of workplace-related allegations. In addition, she says her Contract of Employment entitled her to the benefit of a number of policies, including policies as to how disciplinary matters would be determined and, because the procedures were not complied with, her contract was breached and caused her mental harm for which she is entitled to damages.
3	The plaintiff says that she has suffered significant psychological injury as a result of Stewart’s bullying, the breach of the alleged duty of care owed to her by the defendant, and as a result of the defendant’s breach of contract.  
4	I accept that the plaintiff is suffering from a mental injury by way of Chronic Adjustment Disorder with Depressed Mood.  I accept, too, that her condition will in all probability preclude her from future employment. I accept that her condition developed very largely because of the way in which she responded to treatment she was subjected to in her employment by the defendant.  
5	The defendant did not contest injury, but rather it contended that it is not liable to the plaintiff for her injury.  
6	The plaintiff was represented at trial by Mr Worth of leading counsel, together with Ms L Burke of counsel.  The defendant was represented by Mr Clements of Queen’s Counsel, together with Ms F Ryan of counsel.
The employment setting
7	At the time of the events complained of, it seems that the plaintiff was the longest serving of the defendant’s employees.  
8	As at the end of 2011, and in the first half of 2012, the plaintiff was working as a permanent part-time receptionist for 38 hours per fortnight, performing shifts every Monday and Tuesday from 3.00pm until 9.00pm, and also shifts from around 1.00pm to 9.00pm every second Saturday and Sunday.  
The Contract of Employment
9	The plaintiff and the defendant entered into a written Contract of Employment dated 6 October 1999.  It was subsequently varied by letter dated 13 April 2011, described as a “Change in Terms of Employment”, together with an accompanying “Change in Employment Status and Remuneration Form”.  The effect of these documents on the content of the plaintiff’s Contract of Employment proved to be controversial.  
The Plaintiff’s different claims in summary form
10	The plaintiff’s claim for damages was pressed on four principal bases, namely: 
(i)	that conduct by Stewart, between January and June 2012, constituted bullying for which the defendant is either directly or vicariously liable;
(ii)	in the alternative, the defendant negligently mishandled two separate complaints made against the plaintiff by patients of the MC, both of which were dealt with by Stewart, and that the defendant also negligently mishandled a complaint made by the plaintiff about the conduct of one of the two patient complainants that was also dealt with by Stewart;
(iii)	the defendant failed to exercise reasonable care for the plaintiff’s mental wellbeing after it became aware that Stewart’s behaviour towards her posed a foreseeable risk of psychiatric injury; and 
(iv)	the defendant breached its Contract of Employment with the plaintiff in its conduct of the management and discipline of the plaintiff, and that such breach was a cause of her psychiatric injury.
11	The conduct relied on by the plaintiff to amount to bullying by Stewart comprised:
(i)	the authorship by him and provision to the plaintiff of three separate letters relating to workplace conduct;
(ii)	facial expressions exhibited by him and the impression formed of them by the plaintiff;
(iii)	his conduct of a meeting held with the plaintiff in relation to misconduct allegations arising from a patient complaint, and partially the subject of the first of the three separate letters, together with two further work-related allegations that had also been referred to in the first of Stewart’s three letters;
(iv)	his subsequent investigation and management of a complaint made by the plaintiff about a patient’s behaviour towards her, and that same patient’s allegations of conduct alleged against the plaintiff.
12	The plaintiff submitted that Stewart was the “mind and will” of the defendant such that it is either directly liable for his conduct or is vicariously liable for his bullying.  
13	The plaintiff argued that Stewart’s actions and conduct, when considered as a whole, amounted to deliberate bullying.  Although it is common ground that intention is not a necessary element for conduct to constitute bullying, nevertheless, the plaintiff alleged that Stewart’s conduct was intentional and that he had determined to target the plaintiff in her employment and his impugned conduct was an expression of his wrongful intention.  
14	The plaintiff argued that if she established, on the balance of probabilities, that Stewart’s conduct amounted to bullying and she suffered injury as a result, then she is not required to further prove that it was reasonably foreseeable that she was as at risk of psychiatric harm, or that Stewart or the defendant were on notice of a risk of mental injury resulting from the conduct.
15	In the alternative, the plaintiff argued that if Stewart’s conduct did not amount to bullying, nonetheless, the defendant is liable to her for damages for her psychiatric injuries in both the tort of negligence and in contract.
16	As to the plaintiff’s claim in negligence, she contended that the defendant owed her a duty of care to ensure she was not exposed to the risk of mental harm by unreasonable conduct by Stewart in his management of the various allegations.  The plaintiff submitted that this obligation comprised an element of the defendant’s duty to provide a safe system of work.  It was expressed by Mr Worth in his final address, as a “duty to take reasonable care in the investigatory and disciplinary processes to avoid foreseeable psychiatric injury”.
17	As to the plaintiff’s claim in contract, she argued that the terms of her Contract of Employment expressly or impliedly included the benefits of obligations contained in a number of the defendant’s policy documents governing employee discipline and equal opportunity and bullying, as well as a dispute resolution process contained in an Enterprise Bargaining Agreement (‘EBA’), and that Stewart’s failure to comply with a number of their provisions as part of the management of the various conduct-related matters, amounted to a breach of her Contract of Employment that resulted in psychological injury.  
18	In addition, the plaintiff argued that the defendant, by its managing director, Andrew McKenzie, failed to adopt procedures to mitigate the consequences of the harm the plaintiff had suffered by Stewart’s conduct once he became aware of the plaintiff’s complaints in a meeting they had on 18 June 2012.
The Defendant’s defence in summary
19	The defendant denied that Stewart’s actions, whether by initiating, sending, or otherwise delivering three letters to the plaintiff about conduct-related matters, or that his conduct on 26 March 2012 in the single meeting conducted with the plaintiff, amounted to bullying, or that he engaged in any other conduct towards her that can be accurately described as bullying.  
20	In its Amended Defence dated 17 February 2020 in answer to the breach of contract claim, the defendant: 
(i)	denied that the three “Corporate Policy” documents comprised terms of her Contract of Employment; 
(ii)	denied that the provisions of the EBA comprised terms of the plaintiff’s Contract of Employment;
(iii)	denied that it breached the plaintiff’s Contract of Employment; and
(iv)	said further, that if it did breach the plaintiff’s Contract of Employment, and the plaintiff suffered psychiatric injury as the result, any such breach of contract or injury, loss and damage was too remote and is not recoverable at law.
21	The defendant submitted that in the absence of a finding that Stewart’s conduct constituted bullying, then the plaintiff’s claims in negligence must fail, because she is unable to establish that the defendant owed her a duty of care in regard to the risk of her developing a psychiatric injury.
The evidence
Oral Evidence
•	Patricia Lloyd;
•	Thomas Lloyd;
•	Trent Stewart;
•	Kira Hennessy;
•	Dr Penelope Webster.
Court Documents
•	Interrogatories 1, 2 and 3(a)-(c) of the plaintiff for the examination of the defendant dated 5 March 2019 and the defendant’s Answers to Interrogatories sworn 30 April 2019.
Medical Reports
•	Reports of Dr N Amarasekera, general practitioner, dated 24 June 2013, 15 July 2014, 23 June 2015 and 10 May 2019;
•	Report of Mr G Carrafa, consultant psychologist, undated;
•	Reports of Dr B Hayman, consultant psychiatrist, dated 13 April 2017 and 29 July 2019;
•	Report of Dr D Weissman, consultant psychiatrist, dated 7 May 2019;
•	Reports of Dr S Stern, consultant psychiatrist, dated 24 July 2012, 6 December 2012, 8 July 2013, 3 December 2013, 8 August 2014 and 12 September 2019;
•	Report of Dr S Adlard, consultant psychiatrist, dated 27 April 2016;
•	Report of Dr A Jakobovits, gastroenterologist, dated 27 May 2016;
•	Redacted report of Ms P Webster, consultant in complaints and organisational conflict, dated 18 August 2019;
•	Redacted report of Ms P Webster dated 10 January 2020;
•	Report of Dr N Strauss, psychiatrist, dated 28 November 2017.
The Documentary Evidence
•	Job description for weekend PM shift dated February 1999;
•	Contract of Employment dated 6 October 1999;
•	Position Description dated February 1999;
•	Change of remuneration status form dated 3 April 2002;
•	Email from Julie Smith to Dorothy Lane dated 13 April 2011;
•	Change in terms of employment letter dated 13 April 2011 and form and change in employment status and remuneration form dated 13 April 2011;
•	Emails from Kellie Furey dated 23 January 2012 and 21 January 2012;
•	Email from Christine Dobson to Andrew McKenzie dated 23 January 2012;
•	Email to and from Trent Stewart dated 23 January 2012;
•	Email from Trent Stewart to Matthew Eades dated 30 January 2012;
•	Letter from Trent Stewart, finance manager, to Linda Lloyd dated 1 February 2012;
•	Letter from Trent Stewart, finance manager, to Linda Lloyd dated 29 February 2012;
•	Suggestion/Compliment form dated 13 May 2012;
•	Incident Report dated 15 May 2012;
•	Email from Linda Lloyd to Vicki Tonkin dated 13 May 2012;
•	Letter from Trent Stewart to Linda Lloyd dated 15 May 2012:  “First written warning”;
•	Letter from Trent Stewart to Linda Lloyd dated 7 June 2012;
•	Harassment and bullying report dated 6 July 2012;
•	File note dated 6 July 2012;
•	Undated handwritten file note headed “Meeting with Linda Lloyd and Kiri Hennessy”;
•	Letter from Charlaine Havlin to QBE Workers Compensation dated 9 July 2012;
•	Letter from Andrew McKenzie dated 9 July 2012;
•	Equal Employment Opportunity Harassment and Discrimination Policy issue date December 2005;
•	Disciplinary Procedures policy dated July 2010;
•	Workplace Bullying – Corporate Policy and Procedure issue date May 2010;
•	Healthscope and Non-Clerical Employees HSU Enterprise Agreement dated 2011-2015;
•	Plaintiff’s statutory declaration dated 2 February 2012;
•	Certificates of Capacity dated 25 May 2012, 4 June 2012 and 27 June 2012;
•	File note regarding written complaint dated 12 March 2008;
•	Joint statement of Trent Stewart and Andrew McKenzie dated 20 July 2012;
•	Carnegie Medical Centre progress notes dated 3 October 2011, 25 May 2012 and 4 June 2012;
•	Linda Lloyd medication summary;
•	Linda Lloyd interrogatory 13.
22	In reaching my decision, I have read and had regard to all of the lay evidence and documentary evidence, as well the medical evidence relied on by the parties, together with the final addresses of Counsel and submissions.
What is bullying?
23	Bullying is not a separate and recognised tort in Victoria.  However, conduct that amounts to bullying, and causes injury to a plaintiff, may be recoverable in negligence when judged according to established principles of duty of care, foreseeability and damage.  Bullying, therefore, is a species of recognisable harm that may result in injury to a person.  However, in an employment setting, it is understood that reasonable management action is not bullying.  An employer cannot conduct its operations if reasonable management action will be forestalled by or met with a claim for bullying.  As J Forrest J put it in Johnson v Box Hill Institute of TAFE (‘Johnson v TAFE’):
“Second, critical to the analysis of both the scope of the duty owed by the TAFE and its breach, is an assessment of ‘the context and objective meaning of the acts that are complained of’.  In the present case, the conduct of Mr Williams has been described as bullying and harassment.  But that is simply the nomenclature of Mr Johnson and his lawyers.  One person’s bullying may be another’s exhortation, particularly in an employment situation.  One cannot lose sight of the primary question: whether the TAFE’s conduct (or that of its employees) amounted to a breach of its duty to exercise reasonable care in reducing or eliminating the risk of psychiatric injury to Mr Johnson.”
24	By the same token, an employer cannot cloak bullying conduct with the protection of a defence of reasonable management action, for the simple reason that reasonable management action is the antithesis of bullying.  
25	The defendant did not plead a defence of reasonable management action case.
Definitions of bullying
26	A definition of bullying has existed in a WorkSafe Victoria guidance note on Prevention of Bullying and Violence at Work since at least February 2003.  The definition provided in the WorkSafe guidance note does not have legislative force, but it defines bullying in the following terms:
“Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.  
Within this definition:
‘Unreasonable behaviour’ means behaviour that a reasonable person, having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten.  
‘Behaviour’ includes actions of individuals or a group and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.  
‘Risk to health and safety’ includes a risk to the mental or physical health of the employee.”
27	The defendant had in place a corporate policy addressing workplace bullying.  The written policy came into existence long after the plaintiff had commenced employment with the defendant.  It is dated May 2010, and reads: 
“Workplace bullying is repeated, unreasonable behaviour directed towards an employee or group of employees that creates a risk to health and safety.
 ‘Unreasonable behaviour’ means behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten.  Behaviour can include an individual’s group’s actions or practices that victimise, humiliate, undermine or threaten.”
28	Regardless for the moment whether the defendant’s Bullying Policy has contractual force, as the plaintiff submitted it does, I accept that it contains a reasonable working definition of workplace bullying against which to objectively analyse the allegations made by the plaintiff with regard to Stewart’s alleged behaviour. It seems to me to be self-evident that the defendant adopted a policy containing a definition of bullying at least to assist it in addressing unacceptable conduct in the workplace.  In my judgement, the policy can be sensibly understood as providing mutual benefits to both an employee and an employer without it necessarily being contractually binding.  However, whether the policy comprised a term of the plaintiff’s contract with the defendant and was binding is a separate question for determination.
How to assess bullying – a two stepped test
29	The defendant’s policy definition of bullying is, for all relevant purposes, very similar in language to the WorkSafe definition, which has been the subject of a number of superior court decisions.  These decisions have identified that whether conduct amounts to bullying calls for the application and determination of a two-step test.  In Brown v Maurice Blackburn Cashman (“Cashman”) for example, the Court of Appeal explained the approach to the definition in this way:
“First, was there unreasonable behaviour directed towards the plaintiff i.e.  behaviour that a reasonable person having regard to all of the circumstances would expect to victimise, humiliate, undermine or threaten the plaintiff; and
Second, if there was, did it occur repeatedly?”
30	Therefore, in accordance with Cashman, a negligence action for bullying at common law, requires a plaintiff to establish, on the balance of probabilities, that there was unreasonable behaviour in the workplace which was repeated and unreasonable, and which a reasonable person in all the circumstances of the case would expect to give rise to a recognisable psychiatric illness and it must be repeated.
31	It is also accepted legal principle, that although some incidents of conduct complained of by a worker may, in a particular case, when considered, be regarded as relatively minor, the cumulative effect of offending behaviour on the individual may be sufficient to cause injury.  
The developing recognition of the consequences of bullying
32	The recognition of harmful behaviour in the workplace as a form of tortious conduct that might engender psychological harm is not a revolutionary concept, but rather a manifestation of the development of the law in recognising the insidious effects that that can be wrought to the mental wellbeing of an employee by way of repeated belittling or demeaning or hurtful and threatening conduct.  
33	There are a number of duties that are owed by an employer to an employee and recognised in law that may, in a particular case, prove relevant to a consideration of a bullying but that operate independently of express contractual terms.  They include, but are not limited to:
(i)	The duty to provide a safe place to work;
(ii)	The duty to provide a safe system of work and supervision;
(iii)	The duty owed to take reasonable care to protect an employee against foreseeable risk of injury arising out of their employment.  
34	The nature of the employer’s duty of care was expressed in the joint judgment of the High Court in Czatyrko v Edith Cowan University in this way: 
“An employer owes a non-delegable duty of care to its employees to take reasonable care to avoid exposing them to unnecessary risks of injury.  If there is a real risk of an injury to an employee in the performance of a task in a workplace, the employer must take reasonable care to avoid the risk by devising a method of operation for the performance of the task that eliminates the risk, or by the provision of adequate safeguards.”
35	The duty of care owed by an employer to an employee is a personal obligation and is non-delegable and attaches to the risk of injury in the performance of a task in the workplace.
The duty of care and psychological injuries
36	An employer’s duty of care extends to taking reasonable steps to prevent employees from suffering mental harm, just as it does to prevent physical harm.  However, neither the scope, or content of a duty of care owed by an employer to an employee, can be considered without taking account of the obligations which the parties owe one another under their contract of employment and, to that end, it has been held, that the obligation that is owed by the employer is fixed at the time of the formation of the parties’ employment contract.  This obligation has also been explained by the High Court.
37	In Koehler v Cerebos (Australia) Ltd, (‘Koehler’), the High Court had occasion to emphasise the importance to examine both the content of the duty of care, together with the parties’ obligation under the contract of employment.  
38	Koehler concerned a claim for psychiatric injury arising from the stress of an employee’s workload.  The employee’s complaint was that she was unable to carry out her stipulated duties in the time provided to her.  The Court accepted that an employer is entitled to assume, in the absence of warning of the possibility of psychiatric injury, that the employee considered themselves able to do the job at the time of executing the contract.  There was no suggestion the employee was particularly vulnerable and, although she had complained, there was no evidence that she was putting her health at risk.  The High Court determined that it could not be a breach of the employer’s duty of care to insist upon the employee carrying out the contractual duties to which she had agreed.  
39	The following passage in the judgment of the plurality in Koehler is relevant: 
“Because the inquiry about reasonable foreseeability takes the form it does, seeking to read an employer’s obligations under a contract as subject to a qualification which would excuse performance, if performance is or may be injurious to psychiatric health, encounters two difficulties.  First, the employer engaging an employee to perform stated duties is entitled to assume, in the absence of evident signs warning of the possibility of psychiatric injury, that the employee considers that he or she is able to do the job.  Implying some qualification upon what otherwise is expressly stipulated by the contract would contradict basic principle.  Secondly, seeking to qualify the operation of the contract as a result of information the employer later acquires about the vulnerability of the employee to psychiatric harm would be no less contradictory of basic principle.  The obligations of the parties are fixed at the time of the contract unless and until they are varied.”
40	As was reinforced in State of Victoria v Kozarov when referring to Koehler, “the duty of care which an employer owes an employee in respect of a risk that the employee might suffer psychiatric injury arising from the performance of work is only engaged if psychiatric injury to the particular employee is reasonably foreseeable”.
41	In light of Koehler, it is not an easy task for a plaintiff to succeed where a psychological injury has resulted from the amount of work he or she is required to perform as part of his or her duties contained in an employment contract. However, the law recognises a distinction between different causes of psychological harm, and not all work-caused mental injuries involve workload stresses or demands associated with the performance of contracted duties.  For example the claim brought by Ms Lloyd is not a workplace stress case in the classical sense, despite her pleading including an allegation of stress caused by an unreasonable workload.  
42	Whilst as a matter of law it is reasonable for an employer to consider of an employee, all things being equal, that he or she will perform their contracted duties without suffering psychological injury, it is not reasonable that an employee will, in the performance of their contracted duties, anticipate being exposed to bullying, victimisation or harassment or that, if they are, that the occasioning of a psychological injury is not a reasonably foreseeable consequence and, therefore, too remote.  Such conduct stands apart from, and is the antithesis of, the ordinary indicia associated with the demands and expectations of an employment relationship.  As Dixon J observed in Swan v Monash Law Book Co-operative, (‘Swan’) the risk of psychiatric injury from bullying behaviour is well-understood and is not a consequence that is far-fetched or fanciful.
43	In part, because the manifestation of a psychiatric injury is not inconsistent with repeated behaviour that is belittling or threatening to its target, the law has developed to the point where, in a case of frank bullying conduct, it cannot be excused by the employer pointing to an absence of evident signs of distress by the employee along the way.  
44	Overall, I would respectfully venture to suggest that the approach, adopted by superior and appellate level courts, can be seen to be different in that category of case, where breaches of duty of care have involved acts of repeated bullying that victimise or harass an employee, as compared to, for example, conduct that occasions a risk of harm due to excessive workload demands or the compliance with the usual or reasonably incidental activities of a contract of employment associated with a job of work.  
The Plaintiff’s narrowed complaints of bullying
45	The plaintiff’s pleaded case, as it was ultimately expressed in her Second Further Amended Statement of Claim dated 17 December 2019 (“the Claim”), was wide ranging.  Although no part of the Claim was abandoned at trial, not all allegations were the subject of evidence and, for some other allegations, the evidence was scant or depended on acts otherwise pleaded. Furthermore, not all allegations were the subject of final address and submissions.  
46	For example the plaintiff pleaded that in the twelve months leading up to the end of her employment with the defendant in June 2012, she was 
“… required to work in an environment in which she was exposed to a sensation of inadequate security through the failure to provide adequate security staff in the relocation of her work area to a side street known to be inhabited by drug dealers and drug users.”
47	That allegation was not the subject of the plaintiff’s opening address, and the evidence referred to at trial in support of the allegation was limited such as when the plaintiff, in the course of her evidence, referred to the security of the entry door to the MC.  There are many references to a lack of sense of security in medico-legal reports obtained by the plaintiff, but it would be wrong to approach the plaintiff’s claim for injury as one dependent on a breach of a safe working environment.
48	The plaintiff also alleged in the Claim that she sustained psychiatric injury in the final twelve months of her employment with the defendant, leading up until June 2012, as a result of being “required to undertake excessive work when the Defendant knew that the Plaintiff was suffering increasingly severe symptoms of psychiatric injury”. The direct evidence concerning this allegation was also sparse.  However, the plaintiff’s work demands were raised as part of a discussion Stewart had with her in their only face-to-face meeting in March 2012, and also by the plaintiff in discussions with McKenzie in June 2012.  However, it would also be inconsistent with the plaintiff’s conduct of the proceeding to suggest that her claim depended on an allegation that she suffered her psychological injury due to an excessive workload or the defendant’s response to it.  That is not how the plaintiff’s claim was conducted.  In any event, I am not satisfied the evidence establishes that Stewart had reason to believe that the plaintiff’s comments regarding workplace demands was related to any evident signs of the development of psychological harm.
49	Therefore, my reasons that follow very substantially address the claims as they were developed by the plaintiff’s Counsel at the hearing and in light of the evidence adduced.  
The Plaintiff
50	Overall, I found the plaintiff to be a witness who did her best to give an account of herself and her circumstances.  The events about which she complains occurred a long time ago.  The plaintiff exhibited a strong sense of injustice at the manner in which she believed she was treated by the defendant, but specifically, by Stewart.  The events have clearly dominated the plaintiff’s life and she has implicated Stewart as the author of her distress and illness.  I am mindful of this background when looking at the issues generally.  For instance, the plaintiff gave examples of how she perceived Stewart glared at her when he walked past her at work, and also that she was targeted by him.  I am satisfied that at times, the plaintiff’s description of her dealings with Stewart were somewhat exaggerated and, most probably, have developed through the long lens of litigation hindsight.  Although I have rejected some parts of the plaintiff’s evidence, there are other parts that I have accepted.  
51	A matter of importance relied on by the plaintiff to underpin the allegations that Stewart’s conduct was bullying and that she was targeted by him depended on her impressions of Stewart’s conduct.  I am able to address these issues immediately.
Allegations that Stewart “targeted” the Plaintiff
52	The plaintiff said she “felt [she] was being targeted” by Stewart, although she added, “I don’t know why I had that belief, but I just had that feeling that I was being targeted”.  The plaintiff said Stewart would stare at her and never say anything and, “I just believe that he didn’t want me there”. The plaintiff explained that she had been employed with the defendant for about thirty years and had accrued a lot of holiday and long service leave. She understood that most of the other receptionists “were very young university students that were working there on a casual basis.  I was the only one that was working permanent part-time.  All the other staff that were coming in, they were bringing in for three to four hours.” 
Allegations based on impression
53	I am not satisfied of the plaintiff’s characterisation of Stewart’s conduct as bullying that rely on her interpretations of his behaviour, and consist of his failure to acknowledge her when walking past her at reception, or of an expression of apparent smugness she claimed he exhibited towards her. I have dismissed these attitudinal impressions not because, in an appropriate case, if proved, such behaviour by way of expressions of apparent attitude need be, or should be dismissed as trivial, but instead, because I am satisfied that they are too remote and subjective and instinctual as to admit by me of a positive finding of fact that they occurred. I am satisfied that the plaintiff did not warm to Stewart and saw him in the manner she gave to Dr Brendan Hayman, psychiatrist, that is, a “young macho guy” and someone whom she thought saw her as old and expensive to retain employed, as opposed to a younger and more “casualised” workforce.  She also explained that they had very few interactions as his office was not on site but down the road from the MC and when he did come in he would gravitate to where all the young girls were.
Stewart
54	Stewart testified on behalf of the defendant.  He appeared to do so reluctantly.  He was unimpressive. I said as much to Counsel in the course of final addresses and so as to permit Counsel to address me on the matter.  Stewart was able to provide only the barest of specific recollection of the matters involving the plaintiff. Mr Clements submitted that it was unsurprising that Stewart’s evidence was littered with little memory of events that occurred in early 2012.  
55	Stewart said he is presently employed as a Real Estate Agent.  He is a qualified Chartered Accountant.  He described his duties in the position of finance manager with the defendant as attending to “the finances of the Melbourne Clinic and the Victoria Clinic and the administration team”.  He said his duties expanded to embrace a number of departments including catering, cleaning and domestic services. He was asked if he became involved “in anything to do with staff management or investigations in relation to complaints about staff at some point in time” and said, “That had always been part of the role”.  He described McKenzie as one rung above him in the management hierarchy.  He said they enjoyed an open and communicative style.  He was asked whether, if complaints were made about staff, he would discuss them with McKenzie, and he said, “Yes, absolutely” and “Every time” and that no action would be taken against an employee before he and McKenzie had discussed the matter.  He said performance management was a “quite regular” part of his job.  
56	Stewart was asked if he was familiar with the Healthscope Policies and Procedures document for Disciplinary Procedures 2012.  He said he was.  He was asked whether, in “making decisions or in discussions with Mr McKenzie about what action to take in respect of any particular employee, did you take that disciplinary procedures document into account?”  He replied, “We would have, yes”.  I doubt Stewart was familiar with the Disciplinary Procedures policy document.    
57	Overall, and based on my review and assessment of Stewart’s evidence, I am satisfied that it is more probable than not, in managing the issues that arose in connection with the plaintiff, not only is it unlikely that he had regard to the Disciplinary Procedures policy, but that he  also went about his interactions with the plaintiff with a lack of interpersonal management skill and, it was as much this, as opposed to non-compliance with prescriptive measures contained in policies, that created the setting and was the cause of the plaintiff’s injury.  
58	I accept Mr Clements’ submission that Stewart’s evidence was hampered in large part because his memory of interactions with the plaintiff was virtually non-existent.  The controversy occurred eight years ago.  He has not been an employee of the defendant for some time.  Perhaps other events in his life have overtaken the occurrences from early to middle 2012, but more particularly, it struck me that Stewart simply did not regard the dealings he had with the plaintiff in 2012 as significant.  Although the plaintiff has come to regard her interactions with Stewart as a matter of importance, he did not.  They also occurred over a very short period of time.  Despite my assessment of his lack of interpersonal or managerial qualities, Stewart’s conduct should not be characterised as bullying merely because of a lack of personal qualities.
Management structure
59	Very little was disclosed about the management structure of the defendant.  For example no organisational chart of its structure was tendered.  There were competing contentions to whom the plaintiff was directly answerable. The defendant’s General Manager did not testify, which did not help clarify matters. This was unfortunate because the authority Stewart exercised and the legitimacy of it was controversial. Stewart’s Contract of Employment might have better identified his roles and responsibilities but it was not put in evidence.  I was informed only by his oral evidence.  However, ultimately, I was not hampered in reaching my ultimate findings of fact by the limited documentary evidence on this point. Moreover, for reasons that I will later explain, it appears that McKenzie was content for, if not approved, Stewart taking the steps related to disciplinary matters arising in connection with the plaintiff. 
Plotting the course of conduct
60	The plaintiff’s case at trial concentrated very substantially on allegations of bullying conduct by Stewart comprising the manner of his investigation and management of two complaints made against her by patients of the MC, as well as a complaint by the plaintiff that she was subjected to by a patient.  I shall address their development.
The first patient complaint
61	On 16 January 2012, the plaintiff was working alone on the reception desk at the MC attending to her duties when she had an interaction with a patient.  The plaintiff testified about the events giving rise to the incident in this exchange in the course of her evidence-in-chief:
Q:	“Can you recall an incident on 16 January 2012 when a patient came into the clinic and advised she as there to attend a group gamblers’ meeting? ---
A:	Yes I can.
Q:	What happened on that occasion? ---
A:	On that occasion, I wasn’t aware of the meeting, I wasn’t aware where the meeting was or who was holding the meeting.  A patient came to me said a meeting was on.  I responded, ‘If you’d just like to take a seat, hopefully someone will be with you’.  The patient sat down and as far as I know that was the end of the conversation I’d had with her.
Q:	Did you have any further conversations with her? ---
A:	No.
Q:	What happened in respect of that patient? ---
A:	In respect to that patient I had letters written to say that I’d been unhelpful.
Q:	Before we get to that, on that night, 16 January 2012, did you make any enquiries about where this group gamblers meeting might be? ---
A:	Definitely.  There is one room in the hospital that normally held the night meetings.  I’d rung that room, I didn’t get any response.  I’d rung the Sister-in-Charge of the hospital to see whether she knew of this particular meeting where it might be and where it was on, she was not aware of the meeting.  So I’d been ringing around all the wards and trying to find out where the meeting was and who was running it but I didn’t get any response, no-one knew where the meeting was being held.
Q:	Beyond making those phone calls, what was your capacity to make further enquiries? ---
A:	There was no capacity to make further enquiries because there was no-one answering the phone.  I couldn’t get hold of anybody.
Q:	And what, if any, ability did you have to leave the reception area? ---
A:	I could not leave the reception area.
Q:	Did you make any other observations about what this patient did on that night? ---
A:	No I noticed her sitting down at the reception desk and 15, 20 minutes later, I’m not sure how long, I looked and she was walking out of the clinic.
…
Q:	How busy or otherwise was the reception area that night? ---
A:	The reception area again, it was on a Monday night, that’s when a lot of these groups were being run, there was another doctor’s program on and it was busy, answering the phone, dealing with the door, dealing with the patients.
Q:	Were you the only receptionist on that evening? ---
A:	Yes, I was.”
62	On 21 January 2012, the patient, by way of an email, complained about the plaintiff’s conduct.  It seems that the patient happened to be an employee of the defendant.
63	The circumstances of the receipt of the patient complaint by Stewart was the subject of extensive evidence.  The narrative of the event appears to be that an email complaint was sent by the patient on 21 January 2012 addressed to Ms Kelly Furey, whose email signature identified her as the “Communications Liaison Healthscope”.  The complaint said, relevantly:
“I was recently referred to this clinic by my psychiatrist for treatment and attended on Monday, 16 January for my first group class/es.  The receptionist rostered that evening was unhelpful, rude, condescending and is a dangerous employee in such an environment.  Working myself in a health organisation, I was appalled that such a woman could be employed in a supposedly accredited practice.  Please contact me to discuss this matter as I am considering taking it to the ombudsman for further action due to the fact that her behaviour that night affectivity my already unwell state and put my life at risk.”
64	Ms Furey replied to the complaint by email dated 23 January 2012 as follows:
“Thank you for contacting Healthscope.  Please be assured we take this feedback seriously.
I have forwarded your comments to The Melbourne Clinic and asked the Director of Nursing to investigate the matters you have raised.  They will write to you again as soon investigation has been completed.
I appreciate you taking the time to bring these matters to our attention.”
65	Ms Furey’s response was short and to the point.  No evidence was led by the defendant if anything occurred as a result of Ms Furey’s request to the Director of Nursing to investigate the complaint or, if she did.  Fiona Langley was the Director of Nursing at the time.  She did not testify.  However, Ms Furey referred the complaint to the MC and, as a result, it came to the attention of Stewart, and therein lay the seed for almost the entirety of the problems that would follow.
Stewart responds to patient complaint
66	Stewart wrote to the patient by email dated 23 January 2012.  Relevantly, his email read:
“Thank you very much for finding the time to inform us of your dealings with The Melbourne Clinic.
Obviously, we are very disappointed to hear that your first meeting with us was less than satisfactory, and we sincerely apologise for that.
Please be assured that we are currently looking into the situation, and I will be meeting with the staff member in question.  I will also advise you of the outcome of the meeting once that has occurred.
If you would like to discuss this matter any further, or would like me to call to discuss it further with you, then please don’t hesitate to contact me.
I sincerely hope your future dealings with us are much more positive.”
67	The email was signed by Stewart as “Finance Manager Healthscope”.  Stewart said in evidence-in-chief that he had no memory of sending the email.  He also could not recall if he spoke to the patient. 
68	The patient responded to Stewart’s email the same day.  She wrote:
“Thank you for responding to this matter so quickly.  I did consider the matter carefully before taking this further as I understand that we are all only human and have bad days.
However, upon returning to the group that evening, it was apparent after a discussion surrounding what happened that this employee’s attitude and treatment of other patients has been occurring for some time and not just a one off event.
I shall await to hear from you regarding the outcome of your discussion with the staff member involved before any further action.”
[sic]
A point of importance
69	It cannot be supposed that upon the receipt of the patient’s emailed complaint, that a form of investigation surrounding the circumstances giving rise to it was not warranted.  I think it would have been a matter of neglect and of poor standards on the part of the defendant for it not to have done so.  It is a concomitant of an employment relationship that an employee may be subject to discipline, including the ultimate sanction of termination.  It is something that must be within the reasonable contemplation of any employee when employment commences, and regardless of the existence of written discipline policies or procedures governing disciplinary processes, and whether expressly or impliedly, any such policies themselves form part of a written contract of employment.
70	The plaintiff sensibly did not contest that the receipt of the patient complaint warranted other than an investigation by management.  Indeed, in her evidence, she acknowledged that she had been the subject of a number of complaints by patients over the many years of her employment and that these had been addressed with her by her employer.  No evidence was led by the plaintiff regarding the process of investigation relevant to earlier complaints to suggest, for example the adoption of a different approach than followed on this occasion.  
71	It might be thought inevitable in such a place as the MC that, over the course of an extended period of employment, an employee having direct dealings with patients or their families would invite complaints. The plaintiff was conscious and accepting of the legitimate requirement of her employer to address complaints when received. She acknowledged that she had been on the receiving end of complaints in the past. Instead, the plaintiff’s case concentrated her attention on by whom, and in what manner, and to what extent the investigation concerning the patient complaint was conducted.  
Stewart’s conduct prior to 29 February 2012
72	A further basis on which the plaintiff relied to support her allegation that she was targeted by Stewart, was by reference to the steps he engaged in before notifying her of the patient complaint.  The plaintiff alleged that Stewart had embarked on an exercise in looking for other matters of conduct he could find out about the plaintiff in order to use against her.  
73	The plaintiff said she was unaware of the patient complaint until she received a letter from Stewart dated 29 February 2012 (“the First Letter”) whilst at work performing her reception duties, some five weeks after the receipt of the patient complaint.  It is inexplicable why Stewart took the length of time he did to notify the plaintiff of the patient complaint, particularly, when it included an allegation that the plaintiff was “dangerous” and that her alleged behaviour was not a single isolated episode.  
74	Stewart drafted an initial version of the First Letter, but it was not delivered to the plaintiff.  It was different to the First Letter.  It did not include, as the First Letter would, two additional allegations unrelated to the patient complaint.  The plaintiff intimated that having drafted an initial version of the First Letter, Stewart had second thoughts and held off sending it, until he was able to find other matters of misconduct or irregularities by the plaintiff to add to it.
75	Stewart’s evidence was unhelpful in shedding light on his actions in the period between the unsent letter dated 1 February 2012 and the provision of the First Letter dated 29 February 2012, but he agreed that it was a “very long time to wait if your reputation or risk arises as a result of a complaint … .” 
76	It is clear that Stewart used the time, if not the opportunity, to enquire into the other issues concerning the plaintiff’s work conduct and performance.  He said he had only a “slight memory” of any issue arising about the plaintiff’s sick leave at around this same time but he believed the issue was “there was too much of it taken post weekends and public holidays”.  How, or by whom, such an issue was brought to his attention was not explained, other than when, in his evidence-in-chief, he said, “… only I would assume as a result of queries around sick leave post weekends and public holidays”, but he could not better remember why he was prompted to look into it.  
77	Stewart’s lack of memory also applied to another issue he raised in the First Letter, namely, the plaintiff taking longer breaks than permitted before commencing her duties on reception.  Stewart said his memory of this matter was also negligible, but he thought there was an issue that “timesheets didn’t reflect the leave breaks”.  However, the defendant produced no evidence of timesheets disclosing any irregularities or any complaint by any other employee about the plaintiff prior to the matter being raised by Stewart in the First Letter.  
78	Further evidence of Stewart’s activities in looking into the plaintiff’s conduct prior to the sending of the First Letter is that, on 30 January 2012, he sent the following email to Matthew Eades (“Eades”), who was apparently the defendant’s payroll manager.  The email stated, relevantly:
“I am hoping you can help me - I require a sick leave report indicating any sick leave taken by Linda Lloyd, employee number … [omitted] employed at the Melbourne Clinic, detailing the dates of sick leave taken over the last couple of years if possible.
If you could please get it to me relatively quickly it would be much appreciated.”
79	The Eades’ email was sent by Stewart two days prior to his unsent letter of 1 February 2012.  Stewart could not recall sending the email to Eades.  The evidence did not reveal if anything responsive came of Stewart’s request from Eades.  Stewart was unable to explain why he was seeking the plaintiff’s sick leave records harking back two years.  When it was put to him in cross-examination that he was looking “for something to reprimand Ms Lloyd about”, his answer that it was “unlikely” was peculiar.  He added, “most likely it was something that was brought to my attention that we needed information in a timely manner”.  He had no memory whether he spoke to the plaintiff’s immediate supervisor to ascertain if there was an issue with the plaintiff’s use of leave.  
80	Despite the broad scope of Stewart’s request to Eades regarding her sick leave, ultimately, the First Letter put the plaintiff on notice of only one instance regarding her sick leave and for which an explanation was sought.  
The First Letter
81	The First Letter from Stewart was dated 29 February 2012.  As mentioned, it only in part addressed the patient complaint from 16 January 2012. The remainder of the First Letter referred to the two additional allegations of the plaintiff’s sick leave and of extra time taken between the plaintiff’s shifts and prior to commencing her reception duties.  
82	Regarding the allegation that the plaintiff was taking additional time between breaks, Stewart could not recall if he had spoken with Christine Dobson, who was the Patient Services Manager and the plaintiff’s  supervisor at the time, to ascertain if she was aware of any practice that prevailed about the plaintiff taking leave breaks in excess of 15 minutes. It would have been a sensible thing to do. The plaintiff’s evidence was that the practice was understood by Ms Dobson, and that, in any event, she always made up the additional time so that there was no overall loss to the defendant.
83	Stewart said he had “a brief recollection of comparing CCTV footage to timesheets, but pretty minimal recollection of anything”.  He explained that he would have had recourse to the CCTV because “it had been brought to my attention that there was an inaccuracy in what was being put on the timesheets and what was actually happening”.  He denied he was looking for something with which to reprimand the plaintiff.  If anything corroborative of the allegation came from the recourse to a comparison between time sheets and CCTV footage, it was not identified in the evidence.  
84	The First Letter was written by Stewart on the MC letterhead and was headed, “Re; Unprofessional Behaviour”. The title  conveyed an air of pre-judgement, although Stewart did not agree that it did.  It should have been prefaced with the word “alleged,” or something similar, but overall, I think the heading “Re: Unprofessional Behaviour” can equally and reasonably be understood as consistent with a complaint of misconduct as opposed to a finding of the same.  
85	However, the first sentence of the First Letter was poorly expressed and did convey predetermination.  It read, “It has been brought to my attention that you behaved in an unprofessional manner to a patient on Monday, 16th January, 2012”.  No determination of the plaintiff having behaved in an unprofessional manner could have been arrived at by this stage in the absence of the plaintiff having been spoken to.  Once again the use by Stewart of qualifying language such as “alleged” or “claimed” was warranted.  
86	The First Letter continued:
	“The patient in question, has made allegations that you were:
•	Unhelpful
•	Rude
•	Condescending
She has also advised that she is considering taking the matter to the ombudsman, and is well aware of the processes as she works within the health system.
Further to this it has been brought to my attention that you are taking leave breaks before starting on reception, in excess of the 15 minutes you are allocated.
Finally, we also have some concerns in relation to your sick leave after the long weekend, and how you knew that you would be sick for 2 days on the Monday.
As a result of these issues, I would like to meet with you on (sic) at 10am on Thursday 8 March, 2012 in my office.  The purpose of this meeting is for you to provide a response to the above-mentioned allegations.
You may be represented by or have a witness of your choosing present at this meeting.  Kerry Hennessey, Operations Manager will also be present at this meeting.
Subject to the matter above, you are not to approach or discuss this with any employee of the organisation prior to the meeting.
 … .”
87	Stewart’s correspondence was a very unsatisfactory exercise in employee communication.
88	The plaintiff placed considerable store in the First Letter.  It was argued that the First Letter exhibited a deficient process, because she had not been spoken to ahead of its receipt and that it was wrong of Stewart to have delivered it to her whilst she was on duty at reception.  
89	I do not accept that it was wrong of Stewart to have presented the plaintiff with the First Letter whilst she was at work.  Neither do I accept that it was wrong of him not to have spoken to the plaintiff about the matters before the provision of the First Letter.  I am not satisfied that had, for example, Stewart approached the plaintiff “informally” to discuss the matters, any concerns of the nature that have been subsequently expressed by her would have been any the less.  Rather, the problem lay in the content of the correspondence that included an assertion of proved misconduct, together with a lack of particulars.
90	The plaintiff contended that the First Letter was disciplinary in nature as opposed to counselling.  Stewart disputed that there was anything disciplinary in the nature of the First Letter he penned to the plaintiff.  I think it was capable of being viewed as disciplinary when objectively assessed.  I am satisfied it was a letter that certainly conveyed the possibility of disciplinary consequences.  After all, the  opening sentence of the correspondence was expressed as a conclusion of proved misconduct, and there was an injunction to the plaintiff not to speak with anyone else about the issues and, finally, the affording to the plaintiff of the opportunity to attend at the proposed meeting with a witness, at which would also be present the defendant’s operations manager, is the antitheses of an informal communication.  The First Letter was disciplinary in construction and character, if not intent, and was not made any the less so, despite the request to attend a meeting on 8 March 2012 “to provide a response to the above-mentioned allegations”. 
91	I also accept, as was pressed by Mr Worth, that it would not have been easy for the recipient of such a letter to understand how to respond to the patient allegation due to the lack of particularisation.  In my judgement, an allegation of being “unhelpful”, “rude” or “condescending” invites of particulars.  None were furnished.  The particulars could only have been sourced by Stewart having asked the patient or having someone do so on his behalf, and Stewart could not say if he took any such steps.  I doubt he did. Mr Clements, in the course of cross-examining the plaintiff, intimated that she did not really require particulars.  The plaintiff disagreed.  I disagree.  In my view their provision was a matter of fundamental fairness.
92	The allegation of leave breaks having been taken in excess of 15 minutes was also devoid of particularity, and yet, in the First Letter, it was expressed as a finding that such conduct had occurred more than once, but without any period of time being identified.  It is difficult to contemplate that a recipient of such a letter would have been able to meaningfully respond to such an allegation in the absence of the provision of such information.
93	I am also conscious that the alleged impropriety attached to the First Letter as an act of bullying cannot be fully assessed without a consideration of the plaintiff’s evidence about how it was delivered to her by Stewart.  
94	The plaintiff described that on 29 February 2012, she was working nightshift and was at the reception desk when Stewart walked into reception and “threw” the letter onto the reception desk and proceeded to walk out.  When, in response to the plaintiff asking, “What is this?”, Stewart replied, “Open it, you will see”.  The plaintiff’s husband, Thomas Lloyd, testified.  He said that when the plaintiff arrived home from work she told him she had received a letter from Stewart and explained that it was a letter of reprimand or a first warning.  She told him the letter was “just hand-delivered” by Stewart and he simply said to her, “Here is a letter for you and tossed it to her at the reception desk”.  
95	I have considered the evidence from Mr Lloyd of his wife’s description when she returned from work that evening.  However, as against this, I have also considered that the plaintiff and Stewart had barely had any dealings with one another before becoming entangled in the patient complaint of January 2012.  When Stewart was asked if he threw the letter, his oral evidence was no more specific than, “I don’t think I’ve ever thrown a letter at anyone, so, no” and, “I have never thrown a letter in my life, so I would disagree”.  Despite Stewart being required to rely on a general rather than a specific memory, on balance, having paid careful attention to his response, I am not satisfied that the First Letter was thrown at the plaintiff.  It makes no sense for him to have done so.
96	Putting the plaintiff’s account of how she received the First Letter to one side, I accept that, upon its receipt, she would have been concerned and vexed about its contents.  She said she was concerned about it, and I accept that she was.  I regard her attitude to the First Letter as reasonable in all the circumstances for the reasons I have given.
97	The contents of the First Letter was a piece of less than satisfactory drafting by its author.  It conveyed prejudgement and it lacked particulars.  As I have explained, the injunction to not speak to anyone and the affording of an opportunity to the plaintiff to attend with a witness in the context of the presence of the operations manager, taken together with the language suggesting prejudgement of the patient complaint, can be regarded as clothing both the First Letter as disciplinary in nature.  I am satisfied of that characterisation as a matter of fact.
98	The First Letter resulted in uncertainty and caused the plaintiff some upset.  It created uncertainty because of the lack of particulars to assist her to understand the allegations about which she was invited to respond.  It caused upset because, as she explained, after reading it she burst into tears in the middle of her shift that evening.  She was alone at the time.  No one from the defendant had any knowledge of her reaction.  Stewart did not. The plaintiff was able to continue working her shifts.  There is no evidence that she required any medical treatment or time off work as a result of the provision and delivery of the First Letter.  It was not submitted on her behalf that she did.
99	The calling on of an employee to respond to a complaint related to conduct-related matters is proper and legitimate and something to be anticipated by an employee.  An employer might go about the matter in a ham fisted and less than ideal manner, as I am satisfied occurred in this instance, but I consider that it is important to remain alert in distinguishing poor management that occasions upset to an employee, from bullying resulting in psychological injury.
100	I have also had regard to the plaintiff’s evidence of her own thoughts about the receipt of the First Letter beyond her initial upset and the uncertainty its contents engendered.  In cross-examination, the plaintiff agreed that having read the First Letter, she understood that no finding had been made against her despite the poor drafting.  Her one word answer “Yes” to the question asked of her and relied on by the defendant, however, needs to be understood in the context of the multi-part question put to her, which was in these terms:
Q:	“So when you finished reading the letter, you knew no finding had been made against you, all that had happened was a complaint had been received, a meeting was proposed so you’d be given a fair opportunity to respond after having had time to consider the letter.  That’s what happened isn’t it? ---
A:	Yes”
101	I think that equally relevant is the following question put to the plaintiff, and her answer:
Q:	“And you were told bring a witness if you like and you chose not to? ---
A:	No, because I thought I could deal with it.  It wasn’t such a big deal once they hear the other side of the story.  I didn’t think it was a problem.”
102	Despite the plaintiff saying she thought she would be able to explain the matter, she also said, when asked about her response to the references to sick leave and leave breaks between shifts that, “I felt as if I was being attacked, he was just holding things, sorry, one thing after the other at me”. I am not satisfied that this evidence reflected the plaintiff’s attitude at the time but instead is a manifestation of how she has come to judge her treatment after many years.
103	The plaintiff also said that, after reading the First Letter, she knew who the patient was to whom letter referred.  I am satisfied that after receipt of the First Letter, and before attending the meeting with Stewart, the plaintiff anticipated that once she was  able to explain the incident to her employer, the matter of the patient complaint would be resolved.  She understood that she was free to give her response to the issues raised in the First Letter and she believed and hoped the matter would be resolved once she had been heard.
104	For all of the reasons I have explained, I am not satisfied that, when objectively assessed, Stewart’s conduct up to the date of the meeting was bullying or that the plaintiff believed she was being bullied, as that term is understood.  A reasonable and objective assessment of the matter at this stage is that despite the ineptness in the First Letter, Stewart required the plaintiff to address work and conduct-related matters.  This was reasonable on his part on behalf of the defendant.  I am not satisfied that Stewart engaged in behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten the plaintiff. Each of these requirements on an objective analysis require a satisfaction of an absence of legitimacy by the actor.  I am not satisfied his conduct meets that threshold.
105	I also think there is considerable merit in the defendant’s submission that it would have been potentially unfairly burdensome to the plaintiff if each of the matters referred to in the First Letter had been the subject of separate communications requiring separate responses from the plaintiff.  It could have been addressed that way but it was not wrongful of Stewart to have proceeded as he did. 
The 26 March 2012 meeting
106	The meeting scheduled for 8 March 2012 did not occur but instead was changed to 26 March 2012.  Nothing of importance turns on the altered date.  
107	The plaintiff’s work continued on undisturbed following the provision of the First Letter on 29 February 2012.  
108	Those present at the meeting on 26 March 2012 were the plaintiff, Stewart and the defendant’s operations manager, Kiri Hennessy (“Hennessy”).  
109	I was not convinced that any of the participants had a reliable recollection of what occurred at the meeting.  For his part, Stewart produced and identified a note he said he made of the meeting.  Stewart said he adopted a practice of making notes of matters involving performance management or disciplinary procedures.  No other notes were produced in evidence.  None were called for.  I do not know when the note was created.  Stewart did not say when it was created.  He was not asked.  Nonetheless, the note had a degree of verisimilitude to the plaintiff’s account of a number of matters discussed between them.
110	Hennessy testified on behalf of the defendant but she was of little assistance because she expressed an almost non-existent memory of events.  She recalled attending a meeting at Stewart’s request, but she could not remember any details of it, and the provision to her of Stewart’s note did not revive her memory or improve her evidence.
111	The plaintiff’s evidence concerning the meeting of 26 March 2012 was that its “tone” was accusatory rather than investigatory.  When she was asked by her Counsel for her recollection of what occurred in the meeting, she said that “all the issues was - were discussed … .”  She added that “All the accusations were – were put to me, and I tried to explain the situation”.  She was asked by her Counsel if she had been “given a reasonable opportunity to provide input at that meeting” and tellingly, she answered, “Yes”.  She thought the meeting lasted between 20 and 30 minutes.  
112	The plaintiff said she became distressed in the meeting and was tearful.  She said that she regretted not having afforded herself the opportunity to have a support person attend with her.  She said she had not understood the meeting was intended to be a counselling session until, in the course of it, she was told this by Stewart.  I did not understand it to be contended for as an element of the plaintiff’s case (other than as part of the alleged breach of contract claim by reason of a failure to address work issues initially by way of a counselling session in accordance with the Discipline Procedures policy), that it was to her disadvantage for the meeting to be treated as a counselling session as opposed to a disciplinary meeting, even if the plaintiff had arrived at it under a different impression due to the matters referred to and the directives expressed in the First Letter.
113	The plaintiff was asked how the patient complaint of 16 January 2012 was addressed by Stewart.  She explained that she was not furnished with any better details regarding the allegation from the patient complaint of 16 January 2012.  She said she was told that there had “been a complaint from the patient that I was rude, condescending, inappropriate”.  She was asked to respond.  Her “… response was that if there was a complaint about me it needed to be dealt with and I needed to be spoken to, if there was a complaint about me but I didn’t agree with what the complaint was”.
114	The plaintiff said she was not provided with particulars of the occasions it was alleged she had taken longer breaks.  She said she asked for particulars but Stewart said he “didn’t have any of them”.  She said she interpreted the complaint about her taking breaks as an allegation that she had cheated on her timesheets.  She said Stewart said to her, “That I’d been cheating on my timesheets” but in cross-examination, she agreed that Stewart had not accused her of cheating and instead she said, “Well, I probably took it that way”.  I think this is a further example of the plaintiff’s evidence being to some degree a reconstruction of events. Having said that, her assumption of the implication attributed to the allegation is a reasonable one, and I doubt an objective bystander would not have interpreted the allegation as implying cheating; however, I do not find that Stewart accused her of cheating.
115	The plaintiff said she felt as if she was “being watched, I was being singled out, and he obviously had people around that were reporting back to him”. However, she also accepted that she was given an opportunity to respond to the allegation and, in doing so, she said that “in seven years at the - with the - that I’ve been working with it had never been an issue with that 10 minutes, because it was always made up with 10 minutes after I finished work, or before I came in”.  She said she had taken an extra 10 minutes before her break without any issue from Christine Dobson.  She said she asked Stewart if he could give her the times of or any footage related to the taking of unauthorised leave breaks but that “he couldn’t give me any of that”.  She said she explained to Stewart how she had insufficient time to have a meal and go to the toilet in the 15 minutes afforded her and that she was not provided any breaks after 6.00pm.  She said she explained that the reception area was far too busy and there needed to be someone else on duty to handle all the programs that were being conducted at night time. She said her concerns were not addressed by Stewart in the meeting, but she thought he came up to her at some subsequent stage and said he was looking at putting on more staff, although it never occurred.
116	The plaintiff said that the allegation concerning the use of sick leave consisted of an allegation that she would “take a sick leave on a public holiday”.  She was asked if she was provided an opportunity to respond to the allegation.  Once again, she agreed she was and that, “I was given an opportunity to respond and explained the situation.  That I’d - the public holiday was on a Thursday, I was not rostered on the Friday, Saturday or the Sunday, and the Monday is when I went to a funeral”.  She explained in her evidence that the funeral was for a young boy and that she was “very emotional”.  She said she had a lot of sick leave and “didn’t feel as if I was capable of going in”.
117	The plaintiff was asked what it was about the conduct of the meeting that distressed her and she said that it was “being questioned about my sick leave when I’d gone to a funeral and I was very emotional with it all”.  When she was asked how she manifested her distress, she said “Well, I was in tears when I left the building and asked Kiri Hennessy at the time whether I could just have a break rather than going straight back to the reception desk and dealing with the patients and people”.
118	The plaintiff said that after the meeting concluded she went and sat in her car for approximately a quarter-of-an-hour and cried before she was able to compose herself and return to her shift.  She said that she felt the meeting ended without a resolution of the issues that had been raised with her and that she found this distressing.  
119	The plaintiff said that after the meeting, and until her employment ended, she was distressed “knowing that I was being watched all the time, I was being - obviously reporting - people reporting something back to him.  Anxious - when I walked in the building, whether it was going to happen again, and what was going on.  I was just left - nothing happened after that.”  I think this is insightful evidence from the plaintiff and it suggests that she was concerned that there were others in the defendant’s employ who were watching her and reporting to Stewart about her.  It is not an allegation of conduct being instigated against her by Stewart, but of unnamed people she believed were reporting on her and back to him or perhaps that Stewart had people watching her on his behalf. There is no basis in the evidence to support such assumptions. 
120	There are a significant number of facts raised by the plaintiff in regard to the meeting of 26 March 2012 that need to be considered.  I accept that the plaintiff exhibited upset in the course of the meeting and was tearful when she left the building and that she required a break before being able to return to her duties at the reception, which she took by going to her car to collect herself.  
121	I am not, however, satisfied that the cause of the plaintiff’s emotional reaction to the meeting was the allegation of the patient complaint from 16 January 2012 or the implications she associated with the taking of additional time between commencing reception shifts. Rather, it was caused by the questioning of the validity of sick leave taken on the Monday following the Friday public holiday and when she attended a funeral of the young man with whom she was acquainted.  His death was a sad reminder to her of her own loss of a son at a young age from epilepsy. However, Stewart knew nothing of those personal circumstances peculiar to the plaintiff or of the cause of any emotional fragility when he sent her the First Letter.  
122	The plaintiff explained how she made a statutory declaration dated 2 February 2012 to cover her absence due to illness on Monday, 30 and Tuesday, 31 January 2012.  She said she provided a declaration because she did not have a medical certificate for her absence, but that she had not been emotionally well enough to attend work following her attendance at the funeral.  The statutory declaration was not made in response to any allegation raised by Stewart or by any request from him.  Furthermore, it did not refer to an attendance at a funeral and Stewart could not have known of that circumstance.  
123	Stewart’s note of the meeting is relevant.  It read:
“Met with Linda & Kiri in Kiri’s office
No witness present
Advised her it was a counselling session
Linda admitted to patient allegations, and said no excuse
Leave breaks in excess of 15 mins was discussed
This was denied.  Option to review security feed provided.  Explained not required, and to please be aware of it going forward as not fair on other staff members.  
Sick leave raised.  This caused upset.  Kiri advised it was better to discuss all items at once as opposed to multiple letters which would begin to show behaviour patterns.
Linda also advised of [was too] basic, especially with evening day programs.  I advised I would speak to Vicki Tomlin (FOM) about extra staff at sign in time.  Linda said she had raised it with Christine Dobson previously.  
I advised if she had problems with getting action from Chris, in future she should see me.”
124	Stewart’s note recorded that the plaintiff accepted the validity of the patient complaint from January 2012, for which she agreed there was no excuse.  In explaining her behaviour she cited having felt under pressure in her work, especially at sign-in time at reception, which she explained was particularly busy.
125	The plaintiff denied making an admission about the patient conduct from January 2012.  She said in cross-examination that she could not be expected to have admitted to a complaint when she was bereft of an understanding of what the complaint entailed beyond the general pejorative descriptions attributed to her behaviour by the patient and recited by Stewart in the First Letter.  She said that she had barely had a conversation with the patient in question.  Nonetheless, in cross-examination, the plaintiff said that upon opening and reading the First Letter, she was able to surmise the identity of the patient and that she was not surprised by it. Indeed, she said that another employee had commented to her at the time that the plaintiff was likely to hear more from that patient, foreshadowing the potential for complaint based on the apparent attitude that the other staff member had gleaned of the patient’s conduct. As well, Dr Hayman, upon whom the plaintiff would subsequently attend for the purposes of medico-legal examination  recorded the plaintiff having told him  that that although she did not feel she had been rude to the patient, she may have been “terse,” and in answer to her own counsel’s questions she said, “that if there was a complaint about me it needed to be dealt with and I needed to be spoken to, if there was a complaint about me but I didn’t agree with what the complaint was”.  I am satisfied that it is more probable than not that the plaintiff acknowledged the complaint in the meeting and that she sought to explain it away because of feeling under work pressure, something which she said was a matter of concern for her.
126	In arriving at my finding that it is more probable than not that the plaintiff admitted the patient complaint, I have also given consideration to a number of aspects of Stewart’s note that ring true.  For example, he recorded that the plaintiff denied the allegation of taking leave breaks in excess of 15 minutes, and he made reference to recourse to CCTV footage and having asked the plaintiff to be aware of the issue (that is, extra time taken between breaks in shifts) going forward, as it was not regarded as fair on other staff.  The fact that the plaintiff’s evidence is that the extra time between commencing her shift on reception was made up at other times is an acknowledgement of the allegation that had been raised with her.  I do not believe that it was necessary for Stewart to have inquired if there was a previous arrangement in place with Dobson because, as Stewart’s note explained, he considered it was a question of equity towards other staff. However, it was plainly the position that the plaintiff was endeavouring to impress on Stewart that the extra time was an informal recognition and existence of the demands and exigencies of her employment and that had been historically recognised.
127	In addition, if as the plaintiff’s case would have it Stewart targeted her, in the sense that he manufactured a false complaint about recording of time sheets, it makes little if any sense, why his note would record from her both a denial of conduct (that is, leave breaks) but an admission of the patient conduct from January 2012.  Although Stewart’s note is silent on the plaintiff’s response to the sick leave allegation, given the personal nature of the explanation she gave, I do not think this is surprising.   
128	Stewart’s note recorded that the plaintiff expressed that she felt under pressure in her work, especially at sign in time, which is a matter that accurately reflects both the plaintiff’s  oral evidence, and is one of the issues referred to in the particulars of the Claim and, in that sense, Stewart’s entry in the note is hardly self-serving.
129	In addition, and related to the plaintiff complaining of a lack of assistance in her shift at work of an evening, Stewart’s note urged her to speak with him if efforts to ameliorate her work pressures were not forthcoming with Christine Dobson.  The accuracy of this entry, too, is reflected to some extent in the plaintiff’s evidence that she thought Stewart approached her along such lines subsequently, despite nothing having come of it.  Such an offer of assistance is not consistent with bullying conduct.  I also think it is counterintuitive to regard Stewart as having intended to engage in bullying conduct in the meeting when he had invited the plaintiff to attend with a representative or a witness and also in the presence of Hennessy.  He could not have anticipated that the plaintiff would not avail herself of the opportunity.
130	Having regard to all of the evidence, I am satisfied that Stewart’s note represents an accurate, if not necessarily a complete, reflection on the meeting.  It was not suggested to Stewart in cross-examination that his note was fabricated.
131	In the course of final address, Mr Worth contended that the meeting was not a counselling session as Stewart characterised it, but a disciplinary meeting, and that had it been a counselling session one would have expected there to have been proposed pathways for improved conduct or a plan adopted as is reflected in the overview of the counselling procedure contained in the Discipline Procedures policy. Certainly the plaintiff said in her evidence that she was upset because there was no expressed outcome from the meeting on 26 March.  Nothing was formally documented to enable her to understand the consequences of the allegations and what might be made of them by her employer and she explained that she felt left in a state of limbo which claimed caused her ongoing distress.
132	I am satisfied that, overall, the meeting better accords as having been conducted consistent with the characteristics of a counselling meeting as opposed to a disciplinary meeting, despite me being satisfied that the First Letter was expressed as disciplinary in its nature and despite the absence of documented outcomes.  
133	Because I am satisfied that the 26 March 2012 meeting better accords with counselling, then nothing by way of a documented course of action would necessarily have been warranted otherwise than in regard to the matter of the taking of breaks at reception, which Stewart addressed with the plaintiff by telling her to be mindful of the matter going forward.  His note also recorded the plaintiff’s denial of the allegation and, therefore, I am not satisfied that it should be assumed the issue needed to be otherwise documented.  It might have been preferable had Stewart recorded the matters discussed in the meeting and for the plaintiff to have been provided with a record of the discussion. That would have been sensible regardless of the alleged contractual obligation to do so contained in the defendant’s Disciplinary Procedures policy. 
134	Stewart’s note did not record what was expected of the plaintiff by way of patient relations.  In light of her admission and explanation concerning the patient complaint, the omission caused me some disquiet because, as will be seen in Stewart’s next letter to the plaintiff, he referred to an agreement that had been reached between them that “respect and patience” were to be the hallmarks of behaviour to be accorded patients at all times.  
135	Despite these shortcomings, overall, I am satisfied by reason of what was recorded as discussed in the meeting, and because the plaintiff’s concerns were recorded by Stewart, as was an offer of assistance by him to her, that it belies his conduct as amounting to bullying. I am not satisfied that the conduct of the meeting amounted to or should reasonably be assessed as such.  
136	I am also satisfied that the upset that the plaintiff exhibited on 26 March 2012, was upset that would fall within the range to be expected when an employee’s conduct has been called into question as part of an employer’s management of conduct-related matters.  However, the occasioning of upset does not equate to unreasonable behaviour that would be expected to victimise, humiliate, undermine or threaten the plaintiff when regard is had to all of the circumstances to which I have referred. Neither am I satisfied the display of emotion in the context in which it was exhibited was evidence that should be regarded as having put Stewart on notice of a risk of psychological distress or harm. In my judgement, the substance of the adjectival underpinning for each of the indicia informing the definition of bullying are absent in the conduct of the meeting between the plaintiff and Stewart and Hennessy on 26 March 2012.
26 March to 13 May 2012
137	Despite the plaintiff’s upset at the 26 March 2012 meeting, there was no further contact with Stewart for a considerable period of time, and not until 15 May 2012.  In the intervening period, the plaintiff worked on in her job at the MC, and there is no evidence of any manifestation of ill effect from the processes engaged in by Stewart to that point in time. There was no evidence of any need for medical treatment or like attention by her.  There were no communications about Stewart to, for example, Dobson or to McKenzie. Consistent with an absence of any injury or ill effects commensurate with the events up to and including 26 March 2012, in Answers to Interrogatories, when asked when she initially experienced mental health symptoms, the plaintiff answered, “I believe in June 2012”. Of course, answers to interrogatories will not necessarily be determinative because, as Dixon J, noted in Swan although the plaintiff did not recognise at the time that she was sustaining injury, “a plaintiff can suffer a breakdown through the cumulative effect of the bullying and harassing conduct”.
13 May 2012
138	On 13 May 2012, whilst engaged in the ordinary course of her employment, the plaintiff complained to her employer that she was subject to abuse from a patient who had been admitted to the drug and alcohol program at the MC.  
139	The narrative of the account from the evidence led in the proceeding is that a sister of the patient in question attended the MC at approximately 6.40pm on 12 May 2012, intending to visit the patient.  The plaintiff told the patient and her sister that the sister was not permitted to visit the patient, because the plaintiff’s understanding was that the patient had been admitted to the MC’s drug and alcohol program and strict rules applied preventing patients in that program from having visitors unless authorised by the Sister in Charge or the nursing staff of the relevant ward.  It seems the patient became upset that her sister was not permitted to visit her and verbally abused the plaintiff.
140	The plaintiff sent an email to Vicki Tonkin (“Tonkin”), dated 13 May 2012 at 6.55pm reporting the behaviour.  Her email read as follows:
“Hi Vicki
I would like to put in a complaint about patient … [redacted] Stockdale unit 4.
She came to reception at 6.40pm questioning me why I would not let her visitors stay when other visitors are allowed to visit, I explained that visiting hours for her ward finish at 5pm and that she should be discussing this with the nurses.
With that I got a barrage of abuse, being called a f---wit, bitch etc etc each time I advised her to talk to nurses stuff.
Her outburst was unprovoked and unnecessary.”
141	It seems that in response to the receipt of the plaintiff’s complaint, a nursing supervisor spoke to the patient about the incident.  It appears that on being asked by the nursing supervisor about the alleged verbal abuse directed at the plaintiff, the patient in turn made a complaint about the plaintiff’s behaviour towards her, that was described as “rude and sarcastic” and provoked her to anger and to swear at the plaintiff.  The patient was provided a form by which to make a complaint against the plaintiff.  Whilst this might at first seem to be an odd thing to do, I see nothing untoward about that step being adopted because, necessarily, the defendant owed duties to patients under its care as well as to the plaintiff.
142	Part of the plaintiff’s claim in support of bullying, as well as her claim in negligence that the defendant breached a duty of care owed to her to avoid a foreseeable risk of psychiatric harm, is that Stewart failed to investigate the plaintiff’s patient complaint.  
143	In examining the extent of investigation of the plaintiff’s complaint about the patient’s behaviour, there is limited evidence.  It appears there was the initial attendance on the patient by a person named Dan Dalladay, as well as by the aforementioned unnamed nursing supervisor.  According to a joint statement made by Stewart and Andrews to an external investigator, the contents of which I will need to address in greater detail later in these reasons, “follow-up action was allocated to Suzanne Callaway”. 
144	By the time the plaintiff received the next letter from Stewart dated 15 May 2012, it was accepted that the patient had behaved towards the plaintiff as the plaintiff had alleged, and also that Stewart advised the plaintiff that the patient’s behaviour was regarded as both unacceptable and not condoned.  
145	I do not accept that it is a legitimate complaint to support a claim of bullying by Stewart that the plaintiff’s patient complaint was not investigated.  Indeed, I do not regard the assertion to be factually correct.  I am satisfied that it was investigated, at least in the sense that the patient was spoken to, and it was accepted that she behaved as the plaintiff had alleged.  Also, that the plaintiff was advised that the patient’s behaviour was not condoned.  I see no basis that it was a requirement that the matter needed to be personally investigated by Stewart.  The plaintiff did not explain what else she required to be done or expected to occur in response to her complaint regarding the patient, either by Stewart or the defendant generally.  It was not suggested for example, that the patient should have been sanctioned and, if so, in what way, and by whom.  
146	As to the allegation of bullying constituted by Stewart failing to properly investigate the plaintiff’s complaint about the patient and the patient’s complaint about the plaintiff, neither matter was of Stewart’s making. It was referred to him. When Stewart became aware of the plaintiff’s complaint about the patient’s conduct, I see nothing objectionable in the content of his response to the plaintiff about her complaint.  However, the contents of his letter also addressed the patient’s allegation against the plaintiff, and that is a matter that calls for separate consideration.  
The First Written Warning Letter dated 15 May 2012 (“the FWWL”)
147	The contents of the FWWL provided by Stewart to the plaintiff dealt with two matters.  The first was the patient’s behaviour towards the plaintiff that I have just addressed.  The second was Stewart’s response to the plaintiff in response to the patient complaint about her. The controversy is best understood not just by reference to the correspondence but also by reference to the joint statement made by Stewart and McKenzie to an external investigator.
148	Stewart and McKenzie’s joint statement was not the easiest of documents to navigate by reason of its format, and not all parts of it was cross-examined upon or referred to by either Counsel in final addresses.  However, it is an important document because it provides another account from Stewart to explain the provision of the FWWL.  
149	At paragraphs 19 and 20 of the statement, Stewart is recorded as follows:
“The morning of the 14th May 2012 after I was advised of the incident between Linda and the patient Alexander, I looked into the documentation surrounding the complaint, spoke to Andrew and Fiona Langley Director of Nursing.  Fiona and I decided that with the complaint proven and her behaviour both with this complaint and the previous complaints including the latest one in January which was dealt with on the 26th March 2012.  Linda also demonstrated a pattern of behaviour where she takes sick leave after the lodgement of a complaint in which she is involved and is the perpetrator.  This leave is to short circuit the management of the complaint and the ability to performance manage Linda post incident.
Therefore we decided to act promptly and to issue a First Written Warning Letter even though she was not at work ensuring that this behaviour was brought to a close.  We felt at the time and due to her previous history of similar complaints and not changing her behaviour, the issuing of the letter at this time was a fair and reasonable action on our behalf.”
150	In my judgement, the issuing of the FWWL was neither fair nor reasonable conduct. I am satisfied that the statement referred to above, implicates Stewart and the Director of Nursing, in conducting themselves contrary to natural justice principles. McKenzie too is implicated as being privy to the considerations that were taken into account in determining the response warranted a first written warning.
151	The FWWL read in full as follows:
“Re:  First Written Warning
We refer to our counselling session held on 26th March 2012 in relation to allegations that you were:
•	Unhelpful
•	Rude
•	Condescending
As a result of our counselling session on 26th March 2012 we agreed that this behaviour was unacceptable and that patients coming into a hospital were required to be treated with patience and understanding.
It has since been brought to my attention that you behaved in an unprofessional manner to a patient on 13th May 2012 where you degraded her called her ‘crazy’.
She has acknowledged that she swore, initially at the situation and then at you following the comment.
Whilst we do not condone the patient’s behaviour, it is expected that you will treat patients carefully, calmly and with respect at all times.
As a result of these issues, I would like to meet with you at 11am on Monday 4 June 2012 in Fiona Langley’s office.  The purpose of this meeting is for you to provide a response to the above-mentioned allegations.
Your behaviour towards patients will be closely monitored and reviewed.  If there continues to be a consistent pattern of behaviour further disciplinary action may be taken.
You may be represented by or have a witness of your choosing present at this meeting.  Fiona Langley, Director [o]f Nursing will also be present at this meeting.
Subject to the matter above, you are not to approach or discuss this with any employee of the organisation prior to the meeting … .”
The Plaintiff’s response to the First Written Warning Letter
152	The plaintiff said she was devasted by the receipt of the FWWL.  Her reaction was not helped and was most probably contributed to by Stewart, once again referring to the plaintiff’s behaviour as proved misbehaviour when he had not yet heard from her to permit of her conduct warranting such a finding.  
153	Paragraph 19 of the joint statement to investigators identified that Stewart was told about the complaint on the morning of 14 May 2012, and by the next day, he had been able to determine, apparently in conjunction with Fiona Langley, and after meeting with McKenzie, that the complaint had been proved.  By what measure such a conclusion was able to be arrived at was not explained.  Furthermore, the apparent reason the FWWL was issued was not only because a conclusion had somehow been reached that the patient’s complaint about the plaintiff had been proved, but that Stewart and Langley had taken into account “previous complaints” beyond the patient complaint of 16 January 2012.
154	Another factor that apparently determined the issuing of the FWWL was that the plaintiff had been “absent from work from the time of 14th May 2012 being the date after the complaint was received by management and this is typical behaviour from Linda and has been documented with past incidences of a similar nature”.  If that occurred, it may be observed, it came the day following the plaintiff being verbally abused by a patient of a psychiatric hospital whilst in the defendant’s employ.  
155	The assumption that the plaintiff’s absence was part of a pattern of her response to complaints lodged against her where she had been the perpetrator, is, on its face, an example at the very least, a fundamental lack of industrial nous by those managing the issues, but nonetheless, a response undertaken with the approval of the defendant’s Director of Nursing, and possibly, its General Manager.
156	Stewart’s inclusion in the FWWL that, “[A]s a result of our counselling session on 26 March 2012 we agreed that this behaviour was unacceptable and that patients coming into a hospital were required to be treated with patience and understanding”, goes to the heart of one of the plaintiff’s primary complaints about the 26 March 2012 meeting, which is not only that she had not admitted the earlier patient allegation of 16 January 2012, but also that there had not been an agreed outcome.  In short, the plaintiff’s reaction to the receipt of the FWWL was amplified by what is essentially an allegation that she was “verballed” by Stewart.  Even though the evidence does not support a finding that there had been an agreement to treat patients with patience and understanding, it needs to be remembered that I have already found that the plaintiff did admit the complaint made against her by the patient from 16 January 2012. Moreover, a requirement to deploy such attributes in such an environment, is hardly a remarkable one, in any event.
157	I think it is significant in assessing the plaintiff’s reaction to the FFWL, and whether it amounted to bullying conduct, that it also advised her that she would be closely monitored and reviewed, despite the plaintiff not having been heard on the allegations with the result that Stewart was incapable of knowing if the plaintiff would deny them or perhaps offer an explanation by way of mitigation.
158	Stewart’s conduct, and that of Langley, was procedurally inept and unjust and unfair to the plaintiff in all the circumstances and logically irrational, as was Stewart’s use of language indicating the possibility of further disciplinary action “if there continues to be a consistent pattern of behaviour” when no pattern of behaviour had been established, let alone a consistency, otherwise than by Stewart’s recourse to previous complaints.  
159	Stewart said in evidence that he had no recollection of the sending of the letter, although he thought the issue of the patient’s allegation had been brought to his attention by Fiona Langley, whom he also believed had brought the matter to the attention of McKenzie, who in turn directed the issue back to him.  Stewart said he recalled McKenzie saying to him, “quite clearly, ‘We can’t have that in a psychiatric hospital’”. Stewart’s account of his discussion with McKenzie would not be inconsistent with the contents of the joint statement to investigators.  Stewart went on to say that he thought any discussion beforehand with McKenzie was brief and, “that it would have been - it was a quick discussion in his office, that would constitute a first written warning based on previous letters and conduct”. 
160	Neither Langley nor McKenzie testified and, therefore, McKenzie was not heard on Stewart’s account that he sanctioned the letter being sent to the plaintiff by way of a first written warning and not him.  Despite not being called as a witness, McKenzie withdrew the FWWL in a meeting with the plaintiff on 18 June 2012 apparently on the basis that it did not accord with the defendant’s discipline policy.  Of course, this later withdrawal of the FWWL by McKenzie does not mean that he did not approve it being afforded that character at the earlier point in time as was contended for by Stewart. In the absence of McKenzie giving evidence I am prepared to infer that he did. Moreover, that he did, is consistent with the contents of the joint statement.
161	How the FWWL came to be considered an appropriate response is important both to the bullying claim and the contract claim. Oddly enough the evident industrial law imperfections by way of a lack of procedural fairness that infected the processes undertaken by Stewart, and in apparent collaboration with Langley and McKenzie, militates against a finding by me that the provision of it was an act of bullying by Stewart.  Whilst the provision by Stewart of his own imitative of the FWWL may not in any event have amounted to an instance of bullying, I am satisfied that it is less likely to meet that character because Stewart was directed or authorised by McKenzie to respond to the plaintiff as he did.
162	The plaintiff said she experienced a physical as well as an emotional reaction to the FWWL that included becoming physically ill and vomiting, and she said she was very stressed.  Her account was corroborated by her husband’s testimony.  I accept the plaintiff’s evidence of her emotional and physical response to the letter; although there is no evidence that her response warranted medical or psychological attention at the time or that the defendant had any knowledge of it.
Was the FWWL bullying conduct?
163	Firstly, is the FWWL dated 15 May 2012, when objectively judged in light of all the circumstances, conduct by Stewart that is reasonably likely to have had the effect of victimising, humiliating, undermining and or threatening the plaintiff in her employment? The plaintiff argued it is. The plaintiff contended that the provision to her of the FWWL in the circumstances where there had been an absence of process designed to ascertain the truth of the patient’s allegation that the plaintiff had called her “crazy,” and the inclusion by Stewart in the FWWL of matters related to the patient complaint from January 2012 in order to characterise the plaintiff as engaging in “a consistent pattern of behaviour for which she would be closely monitored and reviewed,” was conduct that I should be satisfied would have the effect of intimidating or threatening the plaintiff in her employment and be detrimental to her.  
164	On the other hand, the fact of the matter is that correspondence by an employer to an employee may contain a threat to employment.  The threat may be couched in permissive language or not; the threat may arise from legitimate work-related conduct or not, and the extent to which it may prove to be illegitimate may itself be unintended or intended.  It may be illegitimate, for example, because the threat fails to take account of industrial obligations imposed on an employer or because it fails to take account of contractual obligations that may apply to the employment.  There must be scope for an employer to be able to engage with its employees and to do so in error, either procedurally or legally, for which redress is available by way of breach of contract or under industrial and employment statutory protections but without such conduct being clothed as bullying.  
165	I am satisfied that the FWWL was procedurally unfair and logically inept.  It was so because Stewart’s correspondence attributed proof to the patient’s allegation prior to speaking with the plaintiff about the matter, and because he used the unproved allegation to add to the plaintiff’s admission arising from January 2016.  
166	However, in my judgement, when a reasonable and objective analysis is made of the FWWL in light of all of the circumstances including that the FWWL does not appear to have been Stewart’s decision alone, then although industrially incompetent, and no doubt intended to put the plaintiff on notice of a risk to her continuing employment, it is not threatening or harassing or intimidatory conduct divorced from work related matters. The imperfections attendant the FWWL in bringing such work related issues to the fore should not readily be converted and characterised as bullying. 
167	Furthermore, despite the provision of the FWWL on 15 May 2012, the plaintiff remained working until 25 May 2012, when she attended on Dr Marita Carmen, whose clinical note is of:
“Stress+++work issues-overworked
Been given warning re job
seem very unfair
Needs to talk to boss?
See gino carrafa? employment lawyer…
Also stress of issues with Chris? homing etc.”
168	Dr Carmen’s clinical note recorded that the plaintiff explained that she considered the warning she had been provided as “unfair” and also that she was highly stressed because of work issues and that she was being overworked.  
169	Dr Carmen provided the plaintiff with an ordinary medical certificate certifying her unfit to attend work for ten days.
170	The plaintiff attended Dr Carmen again on 4 June 2012 and was given another ordinary medical certificate for a further period of time off work.  The doctor’s clinical note read:
“Stress secondary to work situation …
Feels that is unable to RTW yet-too stressful
Encouraged to make contact with boss and discuss issues also seek legal advice …
Has seen Gino?  Helpful.”
171	As the plaintiff was absent from work on sick leave, the meeting Stewart had scheduled for Monday, 4 June 2012 did not proceed.  
Stewart’s Further Letter
172	The plaintiff next received a letter from Stewart dated Wednesday, 7 June 2012 (“the Further Letter”). It was delivered to the plaintiff’s home during a period of her continuing absence pursuant to an ordinary medical certificate.  Omitting formal parts, the Further Letter read:
“Re: Issue in relation to work behaviour
We refer to prior letter dated May 15, 2012 and the subsequent meeting which you did not attend, and did not advice (sic) of non attendance until after the meeting was due to commence.
As a result of non-attendance at the meeting previously set for Monday 4 June 2012 at 11am, a second meeting has been scheduled for Thursday 21st June, 2012 at 10am.
Failure to attend this meeting will result in the Executive management of The Melbourne Clinic arriving at a decision without your input and version of events to mitigate the final decision.
 You may be represented by or have a witness of your choosing present at this meeting.  Fiona Langley, Director of Nursing will also be present at this meeting.
Subject to the matter above, you are not to approach or discuss this with any employee of the organisation prior to the meeting ….” 
173	The Further Letter was another piece of correspondence about which Stewart had no recollection, but he was able to recall the plaintiff’s non-attendance at the earlier scheduled meeting.
174	The sending of a letter to an employee when on sick leave requiring an attendance at a meeting to discuss performance and conduct-related issues under the threat of sanction may, in some instances, amount to unreasonable behaviour and, therefore, could be capable of constituting bullying.  Including in such correspondence an advice that a failure to attend at a rescheduled meeting will result in a “final decision” being taken on the allegations without the benefit of the employee’s input when the recipient is absent on sick leave might also, in some instances, amount to threatening behaviour and so also be capable of constituting bullying.  In each case, it will depend on the surrounding facts and circumstances.  I am satisfied that a reference to a “final decision” in the Further Letter can only reasonably be interpreted to refer to the possible termination of the plaintiff’s employment.  
175	However, as to the surrounding circumstances, the defendant submitted that no evidence had been led that Stewart was aware that the plaintiff’s non-attendance at the meeting of Monday, 4 June 2012 was on account of illness.  I agree and am satisfied of that as a matter of fact.
176	In her evidence-in-chief, the plaintiff said that the illness that prevented her from attending the meeting on 4 June 2012 was “Anxiety, vomiting”.  However, she was directed to her affidavit sworn on 4 June 2012 in support of her serious injury application.  In it she deposed that she had been suffering from bronchitis and, therefore, the meeting was rescheduled to 21 June 2012.  She agreed that it was her bronchitis that caused the meeting to be rescheduled, although she added that “… the anxiety was still there”.  In re-examination, however, the plaintiff could not recall why she was off work on 4 June 2012.  I think the account reflected in the plaintiff’s affidavit is more reliable than her subsequent evidentiary account.  Whilst I accept that the plaintiff very likely was experiencing a degree of anxiety, I prefer the account that the meeting did not proceed as originally scheduled for unrelated medical reasons.  
177	In cross-examination, Stewart was asked if he made “any enquiries as to why she didn’t attend” on 4 June 2012 and he said, “I don’t recall, I would’ve assumed we called, but I don’t recall”.  When asked if he was “aware that she was off work sick with a doctor’s note on that day” he said, he could not recall.
178	Although the clinical note of the plaintiff’s doctors refers to the plaintiff suffering stress, her medical certificates did not.  The second certificate from her treating doctor of 4 June 2012, covering the period from 4 June to 13 June 2012 inclusive, certified the plaintiff as “unfit to continue her usual occupation”, as had the first certificate.
179	Stewart was not privy to the reason for the plaintiff’s absence due to illness when he sent the Further Letter and, as events transpired, the rescheduled meeting was for a date well after the period of expiration of the second ordinary medical certificate, although that was entirely serendipitous.
180	For the reasons explained, I am not satisfied that the Further Letter was bullying conduct by Stewart.
181	Following the expiration of the period covered by the second medical certificate, the plaintiff returned to work.  She said her interactions with Stewart from that point in time were non-existent save that she described that when he walked past her in reception, “he would just glare at me and keep walking”.  I think it very unlikely Stewart glared at the plaintiff, and I characterise her account, as I have the earlier accounts of perceptions made by her and attributed to Stewart.
182	Nonetheless, by now the plaintiff was sufficiently concerned by Stewart’s conduct as to seek assistance, which she did in the guise of Tonkin, her direct supervisor, to whom she showed the Further Letter and asked to attend as her support person because she wanted to meet with McKenzie.  She said she told Tonkin that “I felt like I was being harassed and showed her the letters that indicated the whole situation.  She [Tonkin] was very new to the clinic, she had just taken over”.  She added that although Tonkin said nothing to her about the letter, she agreed that “she would come and support me, to have a witness with me when I – when we went to speak to Andrew McKenzie”.  Tonkin was not called as a witness by either party. Mr Worth submitted that I should draw an adverse inference by the defendant’s failure to adduce evidence from her. For reasons, I will later explain, I have not drawn an adverse inference.
The Plaintiff meets with McKenzie
183	The plaintiff met with McKenzie on 18 June 2012.  She said she told him that she “felt like I was being targeted by this – Mr Stewart, and showed him the letters, which he agreed were not the appropriate way to go about things.” She said she requested an apology from Stewart.  It was not forthcoming, but McKenzie apologised to her.
184	The plaintiff’s evidence was that, by this point in time, she felt as if she was being targeted, bullied and intimidated by Stewart and that she “probably” said this to McKenzie.  The plaintiff’s account of the conversation with McKenzie was not the most persuasive by way of its telling.  I am not satisfied that it is more likely than not that she told McKenzie that she felt bullied, but I accept it is more likely than not that she told him that she felt targeted and intimidated by him.  Ultimately, though I do not think it matters much whether she deployed the verb “bullied” when she spoke to McKenzie.  I do not regard it as of moment, because a complaint of targeting and intimidation is broad enough to encompass bullying.
185	Furthermore, I have borne in mind that the plaintiff’s account is an uncontradicted account of her conversation with McKenzie, and it occurred after her return to work and after she had become sufficiently concerned by Stewart’s behaviour to warrant her requesting a meeting with the general manager, together with the attendance of a support person.  The defendant led no evidence from McKenzie to contradict the plaintiff’s account. On balance, and other than I doubt the word “bullying” or “bullied” was used by the plaintiff, I accept her evidence of her conversation with McKenzie.
186	I am not satisfied that the plaintiff told McKenzie that she considered that the matter of the complaints “should have gone through my supervisor or the general manager”.  This attribution strikes me as bearing the hallmarks of evidence reconstructed in support of the breach of contract claim.
187	It appears that McKenzie did not regard Stewart’s letters as consistent with the defendant’s Disciplinary Procedures policy and he told the plaintiff he intended to revoke the letters and that there would be no further repercussions over the patient complaint.  He accepted that the letters by Stewart had caused the plaintiff upset.  
188	Following the meeting with McKenzie, it appears that the plaintiff last attended work six days later, on 24 June 2012.  She lodged a WorkCover claim on or about 3 July 2012.  
189	On 6 July 2012, the plaintiff, in company with her husband, attended a second meeting at the MC with McKenzie and also attended by a woman identified as Charlaine Havlin. Mr Worth made a submission that I should also draw an adverse inference from the failure to call evidence from her. The calling of an adverse inference does not arise. In any event, the plaintiff did not put in issue any matters of substance that were relied on by the defendant as having been discussed between the plaintiff and her husband and McKenzie in this subsequent meeting.  The failure to adduce evidence from the RTW officer does not give rise to an adverse inference.
Examining Stewart’s conduct overall
190	In arriving at my findings, I have sat back and considered whether, looked at as a whole, Stewart’s behaviour was sufficient to constitute bullying.  I think it would be wrong of me to approach the matter strictly by the construction of each interaction separately without assessing how, overall, the treatment the plaintiff was afforded should be objectively assessed.  In other words, I recognise that the effect on a worker of wrongful conduct can be made the worse by prior conduct.
191	However, having undertaken that exercise, I am unable to conclude that Stewart’s conduct was bullying of the plaintiff. Despite the plaintiff having expressed her belief to McKenzie of being targeted and intimidated by Stewart, I am unpersuaded as a matter of fact, that she was. I accept that is how she characterised it and has come to perceive it. However, I am not satisfied that the plaintiff has proved, on the balance of probabilities, as was alleged on her behalf, that Stewart’s conduct was targeted conduct directed at her for an adverse reason namely, an illegitimate use of conduct-related matters to provide the opportunity to performance manage or discipline the plaintiff to a stage at which she could be terminated.  
192	Despite my findings, I am nonetheless, satisfied that the defendant allowed the management of the plaintiff to be conducted poorly. There was no Human Resources staff available on site at the MC but instead it was housed elsewhere.  I am also sympathetic to the plaintiff being at the receiving end of badly managed employment relations and being exposed to Stewart, who gave me every impression of taking on matters of employee performance that were beyond his skill set. Perhaps, and indeed I suspect, in an industrial relations setting, the form and procedure adopted by Stewart in his correspondence with the plaintiff would be found deficient and unlawful, but in the context of a bullying claim, the enquiry called for is different. I also consider that the difference is more than nuanced, it is important.  While the answer to the question whether there has been bullying may be assisted by deficiencies in attendant performance-related management, including denials of procedural fairness, such as here occurred, deficiencies can arise independently of the character of bullying.  I am satisfied that this is such a case.  
193	The conduct relied on by the plaintiff to cast Stewart’s conduct as illegitimate comprised the enquiry he made of Eades, seeking a two-year history of the plaintiff’s sick leave against a background of what proved to be only one absence when the plaintiff had attended a funeral, about which, however, Stewart was unaware, together with the taking of longer than 15 minutes before commencing her reception shift. Although Stewart might have been able to discern the reason for the sick leave had he enquired better, or been able to determine if there had been a practice that permitted a longer break between commencing shifts had he asked Dobson, such a failing on his part,  goes to a less than ideal process of investigation of the issue, but does not persuade me as amounting to conduct engaged in by him to achieve an adverse outcome for the plaintiff in her employment with the defendant.  Moreover, I do not ignore the fact there is a sound evidentiary basis for a number of the matters raised with the plaintiff, including that she was taking longer time than 15 minutes before the commencement of her reception shift, but that she did not consider it of any moment because of making up for it by coming in earlier or working later, and as well, my finding that she admitted to the patient complaint of January 2012.
194	 Accepting, as I do, that none of the matters including the patient complaint of January 2012, or the later complaint by the plaintiff about a patient, or in turn the patient’s complaint about the plaintiff, were matters of Stewart’s making, I am also satisfied that the investigation of such matters, including the questioning of the plaintiff about them by Stewart, occurred in connection with legitimate work conduct matters to which the defendant employer in the guise of Stewart was entitled to enquire and to seek a response.  
195	For completeness sake, the plaintiff, in final address, relied on both general allegations of bullying and a number of specific incidents.  Although my reasons are intended to incorporate them, I will address them as they were exhaustively expressed by Mr Worth.
(a)	A failure to undertake any real investigation into the patient complaint of January 2012.  This allegation includes what Stewart did not do but he should have done, thereby amounting to a failure to undertake a “real investigation” of the patient complaint.  It was argued that Stewart failed to speak to any staff on duty from 16 January 2012, although he was aware through an email from Dobson to McKenzie dated 23 January 2012 of her own account of the events on the day of the complaint, together with a reference to an employee named “Effie” with whom Dobson had spoken concerning the patient that night.  Irrespective of an interrogation of other sources, it cannot be supposed, it would necessarily have resolved the matter without the issue being put to the plaintiff in any event.  	Secondly, the complaint also included that prior to the receipt of the First Letter, the plaintiff was not spoken to by Stewart.  I have already expressed in my reasons that whilst on the one hand Stewart could have chosen to speak with the plaintiff informally without the architecture of the First Letter or elected to have discussed the single issue of the patient complaint, or to have raised all three issues that were referred to in the First Letter by way of informal discussions, I am not satisfied that is more probable than not, that the plaintiff’s concerns would have been any the less;
(b)	Stewart actively searching for reasons to discipline the plaintiff in the period 21 January 2012 to 29 February 2012 (as demonstrated by the email to Eades dated 30 January 2012 and his preparation of the draft letter dated 1 February 2012).  I accept that the breadth and scope of the request to Eades was odd, and Stewart was unable to offer a reason beyond suggesting it must have been a result of a matter that had come to his attention.  However, I am not persuaded that the fact that his conduct was inexplicable, is positive evidence of bullying.  There is an indication from the joint statement to investigators that the defendant supposed there had been a pattern of the plaintiff taking sick days following any complaints made against her and perhaps this is what underpinned the breadth of the request;  
(c)	Stewart delivering the First letter of 29 February 2012 by throwing it down in front of the plaintiff on the reception desk and walking off, and the circumstances in which that letter was delivered to her out in the open, at reception in the middle of a shift without prior consultation with her. I have already explained that I do not accept the plaintiff’s evidence about the manner of this transaction or that it was wrong of him to have provided her the First letter at work;  
(d)	Stewart sending the First letter dated 29 February 2012, which in its terms was unreasonable, and when viewed in its context, was unreasonable.  For the reasons expressed, I am not satisfied the conduct amounted to bullying. I am unable to adopt the characterisation given this action by the plaintiff because each matter referred to amounted to matters of legitimate concern to an employer.  Hence, it was not an unreasonable communication despite its shortcomings and lack of provision of particulars;
(e)	Conducting a “counselling session” with no prior warning to the plaintiff that it was to be a “counselling session” together with the manner in which he conducted that meeting.  I have already explained why I do not accept this conduct proved disadvantageous or was detrimental to the plaintiff;
(f)	The failure to provide the plaintiff with any clear outcome of, or follow-up from, that March 2012 “counselling session”.  I have explained in my reasons why I do not accept this is a valid criticism, despite acknowledging that it would have been better had Stewart recorded and provided the plaintiff with a record of the discussion;
(g)	Stewart walking into the reception at the MC and just staring at the plaintiff without saying anything; and glaring at her as he walked past reception. In each instance where such matters have been advanced and relied on by the plaintiff, I am not satisfied they occurred;
(h)	Failing to properly investigate the patient complaint of 13 May 2012.
In fact, I am satisfied that it was investigated for the reasons already expressed.  I have, however, also expressed that I am not satisfied the conclusion reached about that complaint was not open to be arrived at because of the lack of procedural fairness that I have detailed;
(i)	Sending the letter dated 15 May 2012 entitled “First Written Warning”, which on its terms is unreasonable and in context is unreasonable.  Although I am satisfied the letter was unfair as I have described earlier, I am not satisfied it meets the character of conduct of bullying;
(j)	Sending the Further letter dated 7 June 2012, which in its terms was unreasonable and in context was unreasonable.  I have explained in these reasons, why I do not regard the conduct as amounting to bullying.
Alternative analysis
196	For the reasons expressed, I am not satisfied that the plaintiff was subject to repeated conduct and her claim in bullying by Stewart has not been proved.
197	Conscious and alert to the possibility that the plaintiff might not prove that there was repeated conduct by Stewart that met the test for bullying, the plaintiff proposed alternative and additional grounds to support a finding of liability against the defendant that was also dependent on Stewart’s conduct but by way of different characterisations.
198	In order to be made good, each alternative ground relied on by the plaintiff and grounded in Stewart’s conduct, and the defendant’s response to it, required, at the very least, a finding on my part there was a reasonably foreseeable risk of psychiatric injury to the plaintiff because of Stewart’s conduct of which the defendant should have, or ought to reasonably have been aware by reason of evident signs of distress.  I will address each ground in turn.
Interpersonal Conflict
199	The plaintiff’s Claim pleaded at paragraph 3D and 3E alleged a number of facts, the combined effect of which is said to establish that the defendant in the personages of McKenzie, Tonkin and Hennessy were aware of, or ought to have been aware of, an interpersonal conflict between the plaintiff and Stewart that created a reasonably foreseeable risk to her of sustaining a recognisable psychiatric injury.  
200	A significant and distinguishing feature to this proceeding, unlike many other reported cases, is the absence of evidence of any interpersonal conflict between the plaintiff and Stewart.  The plaintiff endeavoured to identify a basis to explain the treatment afforded her by Stewart.  Earlier in my reasons I explained why I have rejected as unsubstantiated the plaintiff’s evidence that she was “targeted” by Stewart because of her age, her years of service with the defendant, her employment status and the cost to the defendant in her accruing leave entitlements, by comparison with casual employees.  There is not a sufficient evidentiary basis for the establishment of such a claim.  
201	The plaintiff’s basis for the existence of both a duty of care and its breach, however, remains to be considered in light of the extent of knowledge that the defendant was fixed with of the plaintiff’s mental response to dealings with Stewart from after either the plaintiff spoke with Tonkin or after the plaintiff’s meeting with McKenzie on 18 June 2012.
202	The extent of the plaintiff’s account of her dealings with Tonkin consists of her having showed her Stewart’s letter and requested her to accompany her to a meeting she intended to arrange with McKenzie.  I do not conclude that either the showing to Tonkin of Stewart’s letter or a request by the plaintiff for her to attend a meeting with McKenzie about them because of a concern is evidence that Tonkin was aware of the existence of an interpersonal conflict. Furthermore, as the plaintiff testified, Tonkin was relatively new to her role and an attribution to her as an agent of the defendant who ought to have known of an interpersonal conflict between the two sufficient to attribute to the defendant knowledge of a risk of mental harm, is too remote.
203	Mr Worth submitted that I should draw a Jones v Dunkel inference by reason of the defendant not having called Tonkin as a witness.  Although Tonkin may be regarded as a witness in the defendant’s camp, the fact that the plaintiff said she approached Tonkin and expressed concerns about Stewart’s conduct and requested her to attend with her in a meeting with McKenzie and that Tonkin agreed, is reason enough to equally anticipate that she might have been a witness called by the plaintiff.  I draw no adverse inference from the failure of either party to call Tonkin.
204	As far as Hennessey’s knowledge is concerned, I refer to, and adopt, my earlier reasons regarding the meeting on 26 March 2012 which she attended when the plaintiff became distressed and why I do not accept that the display of upset was evidence of interpersonal conflict with Stewart.  I also note that Hennessy was not asked in cross-examination if she entertained a suspicion or a concern that an interpersonal conflict existed between the plaintiff and Stewart.
205	Furthermore, the claim that Stewart “deliberately targeted the plaintiff in the said period and manipulated the disciplinary processes of the defendant as to target the plaintiff” also fails.  It cannot be ignored that the plaintiff accepted that each of the matters referred to by Stewart in the First Letter and the FWWL were legitimate issues to raise.  Whilst the evidence may lead to a finding of ignorance or lack of care in attending to disciplinary matters pursuant to disciplinary procedures, I am not satisfied that Stewart manipulated the disciplinary processes.  
206	I am not satisfied that the plaintiff has established on the balance of probabilities that the defendant in the form of Tonkin and Hennessy were on notice of the plaintiff being at a foreseeable risk of a psychiatric injury due to interpersonal conflict with Stewart.   
207	There is also an absence of any evidence to support a finding that McKenzie knew that the plaintiff harboured concern about Stewart’s conduct towards her until he met with her on 18 June 2012.  The contents of the joint statement by Stewart and McKenzie does not better advance this element of the plaintiff’s claim.  
McKenzie becomes aware of distress and upset
208	I am satisfied that McKenzie was fixed with knowledge of the existence of the plaintiff experiencing conflict with Stewart from 18 June 2012.  I am satisfied that after McKenzie’s meeting with the plaintiff, it can be said that the defendant was on notice of a reasonably foreseeable risk of psychiatric injury to the plaintiff. She explained her distress to McKenzie.
209	After her meeting with McKenzie on18 June 2020, the plaintiff said that she was left in the dark about any steps that would be implemented to alleviate the problem occasioned by Stewart and the plaintiff’s ongoing exposure to him. Despite this evidence, a good number of steps were taken by McKenzie. Certainly the FWWL and the Further letter were withdrawn. Stewart was counselled. Nonetheless, the plaintiff said she was left anxious and teary whilst at work and that she was “in limbo all the time as you walk in. That’s the worst part, not knowing if I was going to be reprimanded again for something that I’d done”.
210	The question is then distilled to what the content of the duty of care required to be done a result of McKenzie’s knowledge?  The content of the duty to take reasonable care pleaded by the plaintiff at paragraph 3F of the Claim comprised:
(i)	Taking reasonable care to investigate the plaintiff’s complaints of interpersonal conflict between Stewart and herself, in a timely fashion.
(ii)	Taking reasonable care to resolve the interpersonal conflict between Stewart and the plaintiff, in a timely fashion. 
(iii)	Taking reasonable care to discipline Stewart for inappropriate behaviour and/or breaches of the defendant’s policies and procedures, in a timely fashion;
(iv)	Taking reasonable care to communicate with the plaintiff regarding steps being taken to resolve the interpersonal conflict and/or discipline Stewart, in a timely fashion;
(v)	Taking reasonable care to reduce or eliminate the risk of the plaintiff sustaining psychiatric injury as a consequence of the interpersonal conflict between Stewart and the plaintiff, in a timely fashion;
(vi)	Taking reasonable care to resolve any residual conflict between the plaintiff and Stewart in a timely fashion;
(vii)	Taking reasonable care to ensure that the plaintiff was able to continue her work without risk of further interpersonal conflict;
(viii)	Taking reasonable care to reassure the plaintiff that she would be allowed to continue her work without the fear of further conflict with Stewart;
(ix)	Minimising the potential for further interpersonal conflict between Stewart and the plaintiff, or alternatively minimising the contact between Stewart and the plaintiff;
(x)	Taking reasonable care to confirm the lines of reporting for the plaintiff, in a timely fashion, and reassure her that any future concerns would be dealt with:
(i)	pursuant to the defendant’s policies and procedures;
(ii)	pursuant to appropriate lines of reporting;
(iii)	without inappropriate interference from Stewart.
What McKenzie did
211	The plaintiff testified that she had two meetings with McKenzie.  In the course of the first meeting convened on 18 June 2012, she said McKenzie apologised to her. She agreed that the tone of the meeting was “apologetic and conciliatory”. She thought that McKenzie reviewed the FWWL and the Further Letter and he apologised they had been sent.
212	Subsequent to the first meeting with McKenzie, and on 24 June 2012, the plaintiff went off work and lodged a WorkCover claim on 3 July 2012.
213	The plaintiff said she did not regard matters as having been resolved at the conclusion of the 18 June 2012 meeting, and so a second meeting was convened with McKenzie on 6 July 2012, and subsequent to the plaintiff having gone off work. This second meeting was also attended by the plaintiff’s husband and the return to work officer, Ms Havlin.  
214	The plaintiff acknowledged that McKenzie apologised to her for Stewart’s conduct in sending her the FWWL and the Further Letter.  She told him that she would remain away pursuant to a WorkCover certificate for two weeks after which she was intending to travel to Canada where, as it turned out, she stayed for approximately two months. 
215	The plaintiff received a letter from McKenzie dated 9 July 2011. The McKenzie letter recorded the matters that had been discussed at their 18 June 2012 meeting and he apologised again for the distress the situation had caused to the plaintiff and he wrote that having reviewed the FWWL and the Further Letter with her on 18 June 2012 he had found that, “The first letter was requesting a meeting with you to discuss a complaint that a patient had made about you.  I found that this letter was not compliant with Healthscope performance management policy.  The letter should have been advising you that a complaint had been received and asking to meet with you rather than stating the first written warning.”  The plaintiff agreed this extract from the McKenzie letter reflected their discussion on 18 June 2012.  McKenzie also wrote that he believed the Further Letter should not have been sent to her or that it should have been retracted, and he noted that, “I advised you that both these letters were now retracted and there will be no further follow-up.  I apologise to you for the stress that they caused.”  The plaintiff said it did not make her feel any better that McKenzie had apologised and retracted the letters.
216	McKenzie’s letter also addressed what had occurred between them when they met on 6 July 2012.  It reflected her explanation to him at that meeting that she was anxious and distressed and had experienced problems with sleeping since receiving the letters from Stewart and that she had experienced increased work but with a lack of support.  
217	McKenzie’s letter referred to his apology provided to the plaintiff when they met on 6 July 2012 and also said that Stewart’s letters had not complied with the Healthscope policy. The plaintiff agreed that McKenzie also apologised that the letters had been sent to her without him first reviewing them.  The plaintiff agreed that McKenzie had told her that Stewart had been counselled regarding the importance of following policies and procedures.
218	I am satisfied from the evidence I have referred to, including the plaintiff’s testimony, that McKenzie acted reasonably and in a timely fashion upon becoming aware on 18 June 2012 of the distress the plaintiff said she had experienced and that he acted to resolve the same.  The retraction of the letters and the explanation that no further action would flow from the matters the subject of them and also that Stewart had been counselled was a reasonable and an appropriate response.  So, too, the holding of the 6 July 2012 meeting, and the explanatory and confirmatory letter of 9 July 2012, amounted to a reasonable means of communication with the plaintiff concerning the steps that had occurred in response to the knowledge to which McKenzie became privy when he met with her on 18 June 2012.  
219	The remainder of the purposed content of the obligations attendant the duty of care owed by the defendant and pleaded at paragraph 3F of the Claim is somewhat more problematic. They are predicated on the plaintiff having a continuing working relationship with Stewart and the steps the defendant ought to have subsequently pursued or imposed to eliminate a risk of further or ongoing harm to her. I accept that there is nothing to indicate other than that the plaintiff remained under the apparent authority of Stewart.  No step was taken to remove Stewart and his purported authority in relation to performance management of the plaintiff.
220	Although, McKenzie did not take steps to remove the plaintiff from Stewart’s apparent purview over the very short additional time from 18 June until she went off work,  it is sensible to remember that Stewart was housed in a separate building some distance from the MC and the reception area at which the plaintiff worked and, furthermore, that over the period of time the subject of the dispute, they had rarely had any interactions and the plaintiff said there had been no further dealings with Stewart after the receipt of the Further Letter. Tonkin remained the plaintiff’s direct supervisor following Dobson’s departure.
221	Overall, the period in question upon which focus must be confined, is 18 June to 24 June 2012, after which the plaintiff did not return following going off work pursuant to her Workcover claim and then travelling overseas.  Litigation was then initiated. What additional steps might have been required had there been a return to work is not a matter for speculation and should not be determined as a theoretical exercise. 
222	A further duty relied on by the plaintiff and said to have arisen in the circumstances resulting from McKenzie’s knowledge was the duty to take reasonable care to confirm the lines of reporting for the plaintiff, in a timely fashion and reassure her that any future concerns would be dealt with:
(i)	pursuant to the defendant’s policies and procedures;
(ii)	pursuant to appropriate lines of reporting;
and without inappropriate interference from Stewart.
223	The plaintiff testified how McKenzie told her that all disciplinary matters should have come through him.  If this is what McKenzie said, and in his absence as a witness called at the hearing by the defendant, I accept that he did, then it would also require some adjustment in order to accord to the terms of the Disciplinary Procedures policy on which the plaintiff separately relies as a contractual term of her employment.  In other words, McKenzie’s statement to the plaintiff does not accord with the policy which identifies the appropriate persons to be either the department head or the general manager and not the general manager exclusively. Clause 4 of the Healthscope Disciplinary Procedures policy identifies a “department head” and a “general manager” as appropriate persons in respect of an employee employed at the clinic or facility.  Stewart’s evidence was that he was the department head, as he sat above Christine Dobson.  Accepting as I do, the plaintiff’s uncontradicted evidence on the conversation then it discloses that the general manager also disclosed a lack of detailed knowledge of the procedures of the discipline policy as did Stewart. In any event, what additional steps might have subsequently been required is not illustrative in finding a breach of duty as was pleaded by and argued for on behalf of the plaintiff.
224	In addition, I am not satisfied that the evidence supports a finding that if the matters relied upon by the plaintiff as representing the conduct the defendant should have taken to reduce the risk of harm to the plaintiff after 18 June 2012 had occurred, that the plaintiff would not have suffered injury. Her injury had already manifested itself by then and there is no medical evidence to support a finding that the plaintiff’s injury was hastened or made worse in this short additional period of time either because of what McKenzie did or did not do.
225	Accordingly, I am not satisfied of the application of the content of the duty of care alleged at paragraph 3F of the Claim.  
Negligent mishandling of complaints
226	A further iteration of the plaintiff’s action in negligence against the defendant was pleaded at paragraph 3G of the Claim on the basis that the defendant is liable in tort for the “negligent mishandling of 3 complaints”. The three complaints being; the first patient complaint; the plaintiff’s complaint about a patient and that patient’s complaint about the plaintiff.
227	At paragraph 3H of the Claim, the plaintiff pleaded additionally, or alternatively, that her injuries were caused by the defendant’s negligent application of and/or negligent handling of disciplinary procedures against her. 
228	The negligence allegation again concentrated on Stewart’s letters to the plaintiff and the conduct of his meeting with her in breach of an alleged duty of care in negligence.  The particulars in support of the allegation included that the defendant, in the personage of Stewart, unreasonably issued the plaintiff with a letter headed “Re: Unprofessional Behaviour” in February 2012, which letter was “unreasonably disciplinary in nature” and was issued:
(i)	against the defendant’s policies and procedures: 
(ii)	without regard to procedural fairness, due process or natural justice.
229	Furthermore, it was alleged that the defendant, in the personage of Stewart, unreasonably required the plaintiff to attend a meeting in about February or March 2012, which meeting was disciplinary in nature and was conducted:
(i)	against the defendant’s policies and procedures:
(ii)	without regard to procedural fairness, due process or natural justice.
230	It was next alleged that the defendant, in the personage of Stewart, unreasonably issued the plaintiff with a letter dated 15 May 2012 entitled “Re: First Written Warning”, which letter was unreasonably disciplinary in nature and was issued:
(i)	against the defendant’s policies and procedures;
(ii)	without regard to procedural fairness, due process or natural justice.
231	Also it was alleged that the defendant, in the personage of Stewart, unreasonably issued the plaintiff with the Further letter dated 7 June 2012 entitled “Re: Issue in relation to work behaviour” which letter was unreasonably disciplinary in nature, unreasonably threatened consequences against the plaintiff, and was issued:
(i)	against the defendant’s policies and procedures
(ii)	without regard to procedural fairness, due process or natural justice.
232	In addressing each of the allegations pleaded at paragraph 3H, it is necessary to make some preliminary observations.  First, in each instance, the particulars allege that the impugned conduct occurred without regard to “procedural fairness, due process or natural justice” and “against (by which I assume it is intended to mean, “contrary to”) the defendant’s policies and procedures”. The plaintiff did not explain what was intended to be encompassed by the words, “due process” and whether for example, and if so, in what manner it is intended to add to the content of the provision of “procedural fairness” or if it is contended that the requisite contents of the procedural fairness and natural justice are coextensive and, if not, in what way are they different in the application of the facts and circumstances of this case.  Furthermore, it was not explained if “due process” was intended to mean only, but not more than, the content expressed at the five bullet points appearing under the heading of “Due Process” contained in the “PROCEDURE” section of the defendant’s Disciplinary Procedures policy.  
233	Second, the plaintiff did not identify which policies and procedures applied to each of the conduct specified in paragraph 3H.  
234	It remained largely opaque throughout the hearing what Stewart did during the course of the meeting with the plaintiff that rendered it “unreasonably” disciplinary or what occurred in the meeting that caused it to miscarry at law such as to permit of a finding that it was conducted without regard to “procedural fairness, due process and natural justice”.  In any event, I have already expressed that I do not accept that the conduct of the meeting was “unreasonably disciplinary in nature”. Presumably, the plaintiff’s contention is that it fell short of due process and natural justice because of the failure by Stewart to undertake a more extensive investigation of the patient complaint before it was addressed in their meeting, or because the plaintiff was not furnished with better particulars of it at the time as was also the case with the time taken between breaks.  If that be the case, then I adopt my earlier reasons explaining why the plaintiff was afforded a sufficiency of natural justice, not least being the plaintiff’s evidence that she was provided an opportunity to address each matter raised with her in the meeting and because I am satisfied the plaintiff did acknowledge that on occasions she took additional time between shifts but made up for it at other times. The content of the obligation to afford due process or procedural fairness may prove otherwise and more demanding in connection with the resolution of whether or not the policies were contractual, but on the allegation that the complaints were negligently mishandled because of a lack of procedural fairness at common law, I do not accept the contention.
235	It was not explained how Stewart’s conduct transgressed due process and natural justice in connection with the other policies relied on by the plaintiff that were also said to comprise express terms of her employment for the purposes of the allegations made at paragraph 3H.  For example the alleged breach of the Equal Opportunity policy was only addressed to a very limited extent in the plaintiff’s evidence and in the course of submissions. The contention advanced on behalf of the plaintiff was that she was discriminated against because the FWWL said that the plaintiff would be closely monitored and that this would not have occurred to any other employee presumably without her attribute of age or full-time employment status and hence amounted to less favourable treatment. I am not satisfied the plaintiff established either factually or legally the existence of comparatively less favourable treatment.  
236	The plaintiff alleged that the defendant, in the personage of Stewart, unreasonably issued her with the FWWL which itself was unreasonably disciplinary in nature and was contrary to the defendant’s policies and procedure and was given without regard to procedural fairness, due process or natural justice. The allegation seeks to rely on the Disciplinary Procedures policy and perhaps as well McKenzie’s concession to the plaintiff on 18 June 2012 that the FWWL should not have been issued and that it was not in accordance with the Disciplinary Procedures policy. I have already determined that that the FWWL contained conclusions that were not open to be arrived at but I am not satisfied the provision of the FWWL breached a duty of care owed to the plaintiff given as it was as part of an investigation into work related matters.
237	The plaintiff made a like allegation of negligence as a result of the issuing to the plaintiff of the Further letter of 7 June 2012 and that this piece of correspondence was also unreasonably disciplinary in nature, and also alleged that it “unreasonably threatened consequences against the plaintiff and was issued against the defendant’s policies and procedure and without regard to procedural fairness, due process or natural justice”.  I have already concluded that I am not satisfied Stewart’s letter was bullying conduct and neither was it negligent conduct and it is not rendered negligent because at a subsequent date McKenzie withdrew it or expressed to the plaintiff that it should not have been sent due to her being absent on a certificate at the time.
238	The allegations made at paragraph 3I of the Claim include that at all material times, it was reasonably foreseeable to the defendant that there was a risk of the plaintiff sustaining a recognisable psychiatric illness if:
(i)	complaints made against her were not handled in a reasonable manner;
(ii)	complaints made by her were not handled in a reasonable manner;
(iii)	investigations and complaints were not undertaken in a reasonable manner;
(iv)	she was not accorded natural justice, due process and procedural fairness in respect of investigations into complaints made against her;
(v)	complaints were not investigated in accordance with the defendant’s policies and procedures;
(vi)	disciplinary action taken against her was not taken on reasonable grounds;
(vii)	disciplinary action taken against her was not undertaken in a reasonable manner;
(viii)	she was not accorded natural justice, due process and procedural fairness in respect of disciplinary action taken against her;
(ix)	disciplinary action was not taken in accordance with the defendant’s policies and procedures.
239	As is evident from the above recitation, other than the allegations at sub-paragraph (e) and (i), the balance of them are expressed as operating independently of the requirement for the application of the defendant’s policies and procedures which, in any event, are separately relied on by way of a claim in contract and depends on if the policies were incorporated by express reference or by necessary implication into her Contract of Employment.  
240	Further, at paragraph 3J of the Claim, the plaintiff alleges that the content of the duty of care owed by the defendant to take reasonable care to avoid psychiatric injury included:
(i)	taking reasonable care to investigate complaints fairly and appropriately;
(ii)	taking reasonable care to investigate complaints in accordance with the defendant’s policies and procedures;
(iii)	taking reasonable care to afford the plaintiff natural justice, due process and procedural fairness in the investigation of complaints;
(iv)	taking reasonable care to take disciplinary action on reasonable grounds;
(v)	taking reasonable care to undertake disciplinary action in a reasonable manner;
(vi)	taking reasonable care to afford the plaintiff natural justice, due process and procedural fairness in respect of any proposed disciplinary action;
(vii)	taking reasonable care to take disciplinary action in accordance with the defendant’s policies and procedures.
241	Again, the alleged content of the duty of care in all but sub-paragraphs (b) and (g) can be identified as existing independently of the defendant’s policies and procedures.
242	In all respects the alleged content of the duty of care pleaded at paragraph 3I and 3J although differing in language, each embrace the obligation to take steps that it is argued would have amounted to reasonable steps to avoid the risk of mental harm.
243	 The plaintiff’s Claim made further claims at paragraph 4.  The allegation at paragraph 4 of the Claim is that the plaintiff’s injuries were “caused by the negligence of the defendant, its servants and agents”. The particulars appended to the allegation of negligence captured every possible iteration of Stewart’s impugned conduct that was separately alleged to constitute bullying, together with conduct by McKenzie as amounting to negligence. As I have already commented, some of them were only faintly adverted to in the evidence in the course of the trial such as the safe workplace and sense of a lack of security; some were not the subject of evidence at all such as allegation that the complaints made against the plaintiff were authorised by persons who were crazy; however, none were abandoned by Counsel. I do not intend to deal with them each. The factual underpinnings for the majority of them are otherwise traversed above in addressing the allegations of bullying, and others, that depend on the response by McKenzie have been addressed in the context of the allegations of a failure to heed the existence of an interpersonal conflict between the plaintiff and Stewart. The remainder of them are otherwise more appropriately addressed under the claim in contract alleging as they do breach by the defendants failure to address the various matters of discipline in accordance with the enumerated policies, most notably, the Disciplinary Procedures policy.
The Defendant’s response to the claims in negligence
244	The defendant submitted that no duty was owed by it to the plaintiff under any of the plaintiff’s iterations in negligence to avoid a risk of psychiatric injury.  It relied on the decision of the Queensland Court of Appeal in Govier v The Uniting Church in Australia Property Trust (Q) (‘Govier’) that an employer does not owe a duty of care to avoid psychiatric injury to an employee in respect of the timing and content of the provision of disciplinary letters.  Putting to one side for the moment the parties’ competing contentions based on contract, in every material particular, the adoption of Govier would have the effect of protecting the defendant from liability on the basis of Ms Lloyd’s injury having been caused by procedures undertaken as part of a workplace investigation, even if such procedures were mishandled, and injury was reasonably foreseeable.
The Govier debate
245	A substantial proportion of the competing arguments of counsel addressed the question whether there exists at common law a duty to take reasonable care in the conduct of an employee disciplinary investigation so as not to cause reasonably foreseeable psychological injury to the subject of the investigation.  
246	Because I have found that I am satisfied that the defendant was not on notice of a risk of fragility or vulnerability to the plaintiff as a result of Stewart’s conduct until 18 June 2012, but that thereafter, McKenzie acted in a reasonable and timely manner in addressing the plaintiff’s concerns, the question whether the duty contended for, exists at common law, is purely academic to the outcome of the proceeding.  In other words, even if such a duty as is contended for does exist, it does not alleviate the plaintiff from the requirement to establish the existence of facts that ought to have placed the defendant on notice of a risk of mental harm.  I have already explained why I am not satisfied of this before 18 June and why after 18 June the defendant’s response to such risk was reasonable.
247	However, the efforts that both parties put into addressing the issue were considerable.  In addition, in the event that I am found to be in error on my primary findings of fact and conclusions, it is appropriate that I state what my findings would have been on the question.  
248	A quarter century ago, Lord Slynn observed in Spring v Guardian Assurance plc:
“… changes which have taken place in the employer/employee relationship, with far greater duties imposed on the employer than in the past, whether by statute or by judicial decision, to care for the physical, financial and even psychological welfare of the employee.”
249	To what extent then has the law evolved protections for employees from psychiatric harm that may result from negligent management of the workplace?  The plaintiff submitted that it has evolved sufficiently enough that it is open for me to find that there does exist “a duty, at large, to take reasonable care in the conduct of an investigation so as not to cause reasonably foreseeable psychological injury”. 
250	The plaintiff’s expression of the duty of care owed to her is a reflection of the duty that the appellant, Ms Govier, argued for the adoption of before Justices Bell, Gageler, Nettle, Gordon and Edelman in the High Court prior to the Court revoking the grant of special leave because, as her Honour Justice Bell said: 
“The contract of employment is not in evidence.  In the course of the hearing, its centrality to the determination of the issue on which leave to appeal was granted has emerged.  It follows that the proceeding is not a suitable occasion on which to determine those issues.  Special leave is revoked.” 
251	Mr Clements submitted that the law is currently settled by the decisions of Govier, undisturbed by the High Court and State of New South Wales v Paige (‘Paige’), with the result that the obligation of an employer to provide a safe system of work does not extend to a requirement to take reasonable care in the conduct of an investigation so as not to cause reasonably foreseeable psychological injury. In short form, the defendant submitted that otherwise than by acts amounting to deliberate bullying by Stewart, if any harm was caused to the plaintiff by a deficient investigatory process undertaken by the defendant, then no recourse by her against it will lie.  
252	At first glance, the distinction relied upon by the defendant may appear arbitrary and even capricious.  For example by reason of the defendant’s analysis of Govier, an employer, by its senior management, could act incompetently in conducting an investigation into legitimate complaints about an employee, and if the employee suffered mental harm as a result of such incompetence, there would be no remedy even if the risk of mental harm from the conduct of such an investigation was reasonably foreseeable and the employer was on notice of a mental fragility.  On the other hand, if in the course of an otherwise legitimate workplace investigation into conduct, a manager engaged in repeated acts that met the definition of bullying, then the defendant would not be shielded by Paige or Govier despite a lack of knowledge or an awareness of a risk of mental harm being suffered as a result of the bullying. There would exist direct or vicarious liability.
Tracing the legal developments
253	Mr Worth contended that an important point of distinction between the plaintiff’s case and Govier in the High Court, is that unlike the High Court, the plaintiff’s Contract of Employment is in evidence.  
254	Ultimately, I would not have accepted that the plaintiff’s Contract of Employment or the other points of distinction relied on by Mr Worth concerning the application of the decision of the Queensland Court of Appeal in Govier has the effect contended for on behalf of the plaintiff, but in order for me to explain why, it is first relevant to address the facts in both Govier and Paige and the decisions that resulted.  
The facts in Govier
255	In Govier, the pertinent facts included that the plaintiff and another employee, “MD”, were both disability workers and were responsible for the care of the employer’s client.  During a crossover of their shifts, the plaintiff and MD engaged in an altercation, with the plaintiff suffering both physical and psychiatric injuries by MD, with the result that she was hospitalised as result of the injuries.  On the following day, her employer issued the plaintiff a letter instructing her to attend an investigation interview.  The plaintiff was also directed not to discuss the incident with any other employee and was stood down on full pay pending the outcome of the investigation.  The plaintiff did not attend the interview and instead, presented a medical certificate to her employer which stated she was unfit for work.  However, a fortnight after the incident, her employer issued a further letter to the plaintiff claiming she had refused to attend an interview and advising of their preliminary view that she had engaged in violent and inappropriate behaviour against MD.  The employer had spoken to MD and their client, where they concluded that the incident involved kicking, hitting and pushing by the plaintiff.  The plaintiff was provided five days in which to show cause why her employment should not be terminated.  The plaintiff’s employment was ultimately terminated and she was diagnosed with a chronic post-traumatic disorder and a major depressive condition.  As a result, the plaintiff claimed damages for the aggravation of her psychiatric injury, contending that the content of the two letters aggravated her chronic post-traumatic and major depressive disorders and had she not received the letters, her injuries would not have been so severe.
256	In the District Court of Queensland, the plaintiff was unsuccessful despite a number of favourable findings of fact.  For instance, the trial judge found that two relevant letters caused psychiatric injury to the plaintiff, and that her psychiatric injury was reasonably foreseeable and that by the timing of and content of the two letters, the employer failed to take reasonable care for her, but her claim failed, because no duty of care existed in respect of the timing and content of the letters.  The trial judge rejected the plaintiff’s submission that a duty of care existed to provide a safe system of work which extended beyond the conduct of tasks for which an employee is engaged and this, therefore, included a duty to provide a safe system of investigation and decision making.  The trial judge adopted and applied Paige, in which it was held, that the employer did not owe a duty of care to conduct its disciplinary procedures so as to avoid psychiatric harm to an employee.  
257	The plaintiff appealed to the Queensland Court of Appeal, who agreed with the District Court.  The Court of Appeal also applied and followed Paige.  
258	The plaintiff sought leave to appeal the decision of the Queensland Court of Appeal to the High Court.  Special Leave was granted.  The special leave question before the High Court was expressed in a manner designed to consider whether the decision in Paige precludes the obligation of an employer from having a duty of care to an employee merely because the acts complained of are done in the course of the workplace investigation.
259	Just as with the plaintiff, Ms Govier argued her claim in tort and contract, relying upon implied obligations under her contract of employment.
The Special Leave Application
260	On the hearing of the special leave application, Edelman J found that the contractual obligation and the tortious obligation were both entrenched in the concept of an “assumed responsibility” but his Honour considered that the assumed responsibility was exclusively shaped by the terms of the parties’ contract.  On the other hand, Gordon J adverted to the fact that the contract of employment was not exhibited at trial and, therefore, absent its terms to inform the conduct of the employer, the Court was unable to understand the contractual framework and, in particular, was unable to consider the question as to the existence and scope of any duty of care arising under it or assumed by it.  Her Honour stated: 
“… one does not look at the tort in terms of the duty and scope without understanding what the contractual framework is.”   
261	Because the grant of special leave was revoked, the question whether investigations form part of the employer’s duty to provide a safe system of work, by taking reasonable care to avoid a foreseeable risk of mental harm, remains unanswered by the High Court.  Thus Govier remained undisturbed on appeal.
Govier built on Paige – the facts in Paige
262	As opposed to Govier where the facts bear a degree of commonality with those to the plaintiff, in Paige, the factual setting was very different.  The controversy arose in a school setting and addressed issues, including the availability of remedies under administrative law by way of review as well as the Commonwealth statutory industrial relations regime addressing terminations of employment and the extent of modification to the law of contract, neither of which apply to the plaintiff and was relied upon as relevant points of distinction by Mr Worth.
263	As a school principal, Mr Paige dealt with two complaints of sexual misconduct against a teacher.  He notified the Education Department of the first of the complaints.  He was dissatisfied with the Department’s response.  When a second complaint was made, he dealt with it himself and bypassed the Education Department. Subsequently a Royal Commission was conducted into the adequacy of the Education Department’s dealing with such complaints. In response to the findings of the Royal Commission, the Director-General of the Education Department invited re-submission of past cases of misconduct.  Mr Paige resubmitted the first complaint, with the result that he found himself being investigated for disciplinary offences relating to how he had handled both complaints.
264	Mr Paige’s claims against the Education Department included firstly, allegations that he had been given assurances that he would be protected if he re-submitted the complaints.  Secondly, he complained that rather than hear him in person, the Department elected to hear the disciplinary charges it preferred against him on the papers.  Lastly, he contested whether he had resigned his employment or had been dismissed.  
265	At first instance, the trial judge found in favour of Mr Paige on the cause of action in tort.  The duty of care expressed by the trial judge was that “… an employer is under a duty of care to take reasonable steps to prevent psychological injury to its employees”.  As a general proposition and depending on revealed facts, for example whether the risk of injury is one associated with the performance of the duties of employment or of an “office”, as was the case, for example in State of New South Wales v Seedsman, as opposed to injury being occasioned as a result of matters peripheral to the actual performance of duties, the expression of the duty of the duty of care is not controversial.  
266	However, the trial judge elaborated on and otherwise expressed the duty of care in the following terms:
“Subject to the necessity imposed by the obligation of the defendant to carry out investigations and, where appropriate, to take action against employees who are in breach of the terms of their employment, for example, by the commission of disciplinary offences, it seems to me that the general duty of care resting on an employer to provide a safe system of work encompasses the provision of a safe system of investigation and decision-making in the way described in the Statement of Claim.
 … that is subject to the necessity involved in discharging contractual, common law or statutory obligations in relation to the conducting of enquiries.  Any teacher who is subject to a disciplinary inquiry is likely to suffer stress and, possibly psychiatric injury, as a result of the conduct of such an inquiry.
 The breach of the duty of care in those circumstances will only come about where the system of investigation or decision-making is not a proper or reasonable system or is carried out otherwise than in accordance with the rights of the employer to regulate its activities in accordance with contract, common law or statute.”
267	It is instructive to note what matters were not challenged on appeal in Paige.  The quantification of damages was not challenged.  No ground of appeal was invoked in relation to pertinent case law limiting the circumstances permitting the recovery for mental trauma.  The appellant did not assert that a person of normal fortitude would not have suffered any such injury.  Lastly, the appellant did not assert that psychiatric injury was not reasonably foreseeable.
268	In the hearing of the appeal, the appellant accepted that it had a duty to avoid the risk of foreseeable injury and that there were circumstances in which psychiatric injury was relevantly foreseeable.  However, it contended that there was no duty of a character relevant to the proceeding.
269	The Court of Appeal rejected Mr Paige’s claim. Chief Justice Spigelman, who delivered the judgment of the Court, comprising Mason P and Giles JA, referred to authorities regarding a “safe system of work”.  His Honour noted that they concerned “the conduct of tasks for which an employee is engaged”.  He said that Mr Paige’s complaint was not about the effects of performing his duties of office but was concerned with matters peripheral to performance of his duties. His Honour addressed the formulation of the duty of care as it had been articulated by the trial judge:
“The trial judge’s reference to the well-known category of duty to provide a ‘safe system of work’, conceals the novelty of the duty his Honour identified in this case.  There is an ambiguity inherent in the word “system”.  The body of case law with respect to a ‘safe system of work’ has been, so far as I am aware, exclusively concerned with the conduct of tasks for which an employee is engaged (citations omitted).  His Honour made no reference to any authority, nor was any authority drawn to the attention of this Court, that extended the concept of ‘system of work’ as to matters concerning the incidence of contract of employment, such as the disciplinary procedures under consideration in the present case.  This is a novel category of duty and involves an extension of employer’s duties. In the present context, it raises important considerations concerning the interrelationship between duties of care and statutory powers and duties.” 
270	The Chief Justice found that there was no duty of the type alleged by Mr Paige because any duty to take care as to the matters he complained about would be inconsistent with other parts of the common law.  His Honour said:
“Of particular significance for the present case is the need for coherence in the law, in view of the interaction and interrelation between the proposed duty in tort and the law applicable to termination of employment, that is, the law of contract as modified by statute.  In my opinion, the possibility of incoherence in the system of law applicable in this State is such that the proposed duty should not be recognised.”
271	His Honour held that a proposed duty owed by an employer to supply a safe system of process of disciplinary procedures was a novel category of duty which should not be recognised.  His Honour considered that imposing such a duty “intrudes into matters within the heartland of judicial review of administrative conduct.”  His Honour also considered that compensatory damages are rarely available for administrative error, and as well, that the rules of natural justice are well developed in their own framework, which is not compensatory in nature, but rather are for the purpose of upholding the rule of law and ensuring effective and accountable decision-making processes within the executive arm of government.  Naturally enough, Mr Worth submitted that none of these considerations identified in Paige intrude on the matters agitated by the plaintiff.   
272	Mr Worth submitted that the plaintiff’s claim does not give rise to the need to address the coherence in the law, in view of the interaction and interrelation between the proposed duty in tort and the law applicable to termination of employment, that is, the law of contract as modified by statute.  That is so presumably, because of the plaintiff’s reliance that the harm caused to her occurred in her employment and not as a result of her employment having been terminated.  A similar point of distinction concerning the application of Paige was relied on in argument by Senior Counsel for the appellant in Govier before the High Court’s revocation of special leave.
273	Each of Paige and Govier are decisions of intermediate appellate Courts of other States.  The defendant submitted that and I am bound to follow them unless I am satisfied that they are “plainly wrong”.  The decisions are highly persuasive but I am not bound by them.
274	Mr Worth urged me to conclude that Govier is plainly wrong. He advanced several reasons in support of his submission but chief among them was his characterisation of the Queensland Court of Appeal’s “unquestioning acceptance” of the authority of Paige.  I do not accept this to be an accurate critique of the decision of the Court of Appeal in Govier.
275	On my analysis of Govier, the Court of Appeal did not merely adopt Paige, unconscious to the points of difference arising from the surrounding factual and legal matrix but was conscious of them and addressed each of the identified differences urged on it by the appellant.  The Court of Appeal said:
“… The appellant sought to distinguish Paige on the ground that it involved a statutory process of investigation and asserted requirements by the employer which would have been inconsistent with the statutory procedures.  That difference between this case and Paige has no bearing upon the New South Wales Court of Appeal’s decision that the proposed duty by an employer to supply a safe system of investigation and decision-making in relation to the incidents of an employee’s contract of employment, as opposed to a safe system of work in relation to the conduct of tasks for which an employee was engaged, would involve a novel category of duty of care.  In relation to the question whether that novel category of duty should be established, the passages from Paige extracted in these reasons show that the New South Wales Court of Appeal dealt separately with the question whether the proposed duty of care would be incompatible or incoherent with the law of contract, as modified by statute, concerning termination of employment.  I do not regard this suggested ground of distinguishing Paige as a sufficient basis for holding that the respondent owed the appellant the postulated novel duty of care in the course of the respondent’s investigation in this case.”   
276	There is an important point of difference between the facts in Govier and the facts concerning the plaintiff.  Before the High Court it was accepted by the applicant and respondent that the employer had knowledge of Govier’s fragile state of mind, whereas to the contrary, I am positively satisfied that the defendant did not have knowledge of a fragility or mind or emotional vulnerability of the plaintiff until 18 June 2012, when she met with McKenzie.
277	Mr Clements submitted that in accordance with Govier and Paige, the plaintiff’s claim must fail –
“… because she is unable to establish that the Defendant owed her any relevant duty of care in respect of the psychiatric injury and/or unable to establish that any duty of care in respect of psychiatric injury is enlivened in the circumstances of her case.  That is the case because appellate level judicial authority in Australia makes it clear that the common law duty of care of an employer to provide a safe system of work does not extend: -
 (a)	to requiring an employer to take reasonable care in the conduct of an investigation into allegations about an employee’s conduct or in the timing and content of letters relating to the investigation of allegations made about an employee’s conduct; and
 (b)	it does not encompass the provision of a safe system of process of investigation and decision making with respect to allegations
My approach to the controversy
278	First, I accept that circumstances may arise in which it is reasonably foreseeable that a plaintiff may suffer a risk of mental harm if disciplinary processes are not carried out competently by an employer in the course of an employee’s performance of their work.  
279	Second, the imposition of the duty pressed by Mr Worth have their antecedents in Paige and Govier and in the inchoate submissions that were advanced by Senior Counsel for the applicant in Govier on the Special Leave Application.  
280	Third, whilst the undertaking and carriage of disciplinary processes cannot arise outside of the workplace environment, the adoption and application of such processes are not essential to the work the plaintiff was contracted to perform for the defendant.  They invariably arise in connection with work performance or conduct but are separate to the work.
281	Fourth, whilst disciplinary processes may be enlivened because of alleged misconduct in the workplace, they are not always so confined.  They may very frequently be engaged in response to less than satisfactory or expected performance of work duties.  Consequently, the imposition of a duty, at large, to take reasonable care in the conduct of an investigation so as not to cause reasonably foreseeable psychological injury is too broadly expressed and by way of a net too widely cast.  
282	The commencement of an investigation into a work conduct or work performance matter may begin and end in short compass and on occasions without the employee having knowledge it ever occurred.  In some instances the investigation may need to be held in camera without the employee being privy to the preliminary or tentative enquires being undertaken.  At times an investigation may commence and after it has and following the employee having been advised of the matters of concern and upon hearing the employee and on and acceptance of any explanation proffered, it might come to a sudden or abrupt close without more.  However, sometimes more will be required.  An investigation may need to be broken in time and not proceed by way of a continuous or seamless process; additional information may come to light which might need to be addressed by ex parte discussions or by way of gathering of relevant or potentially relevant information.  At any one of these steps along the way there might arise a real or appreciable risk of psychological harm to an employee, depending on what he or she is aware is taking place or becomes subsequently aware has occurred.  To impose a duty of care as formulated to so many moving parts that constitute an investigation is not readily reconcilable with a duty of care to provide a safe system of work.  Thus, for example, whilst the patient complaint of 16 January 2012 could have been addressed better by Stewart in his use of language in the First Letter, the deficiency is outweighed by the legitimacy of the exercise of enquiring into the complaint by the patient.  
283	Fifth, I have dismissed the contention that Stewart was motivated by any untoward purpose.  This finding applies equally to the two other matters raised by Stewart in the First Letter consisting of the record keeping of time taken between shifts and the matter of the one occasion of sick leave.  
284	Sixth, having rejected that the matters Stewart raised in his letters or in his meeting with the plaintiff were created or fashioned by him for an improper or impermissible purpose, or that they comprise bullying conduct, then the plaintiff’s case is inevitably brought back to establishing that in undertaking a work conduct investigation, there is a duty of care recognised at law to avoid the risk of a psychiatric injury.  I am not satisfied the duty exists.  
285	Seventh, neither am I satisfied that it is relevant to the plaintiff’s proceeding that other iterations of a duty of care have been recognised in other cases in circumstances such as referred to but distinguished by the Court of Appeal in Govier.
286	Eighth, I am not satisfied that Govier is plainly wrong or that the prevailing state of the law extends to impose such a duty of care on an employer to conduct performance-related investigations as part of the duty to provide a safe system of work including the provision of letters addressing such matters or the timing of the same.   
287	For all these reasons, I am satisfied that the claim in negligence that seeks to impose liability on the defendant and that depends on the actions and conduct taken by Stewart in the course of the work-related conduct allegations as identified in each of the particulars of breach relied upon must fail.
288	However, the application of Govier is not absolute.
Post 18 June 2012
289	I am satisfied that the limitation arising in Govier does not apply to the conduct of the defendant relied on by the plaintiff that occurred after 18 June 2012.  I am satisfied that on 18 June 2012, McKenzie effectively terminated the matters that had been the subject of complaints and investigation by Stewart.  Therefore, the defendant would be amenable to a claim in negligence on the ordinary principles of tort associated with the occasioning of psychiatric harm from that date and unimpeded by Govier and its limitations related to workplace investigations.  However, although the defendant became aware of the existence of the plaintiff’s conflict with Stewart, and she identified having experienced anxiety and distress as a result of her response to his conduct, for the reasons I have earlier expressed, I am satisfied that in all the circumstances reasonable care was thereafter taken to avoid the risk of mental harm or further mental harm being occasioned to the plaintiff.
Conclusion
290	Apart from the hurdle of Govier, I would not have been satisfied that the plaintiff exhibited evident signs of psychological vulnerability in response to her treatment. I have earlier explained why I do not regard the outward display of upset by the plaintiff in the course of her meeting with Stewart and Hennessey as evidence that did or should have alerted Stewart, and therefore, the defendant, to the risk of a psychiatric injury.  In my judgement the upset experienced by the plaintiff was responsive to legitimate issues raised by Stewart that warranted a response by the plaintiff.  The plaintiff acknowledged as much.  There were no other signs exhibited by her about Stewart’s conduct until June 2012, when she returned from a period of sick leave covered by ordinary medical certificates and spoke with Tonkin.  By this stage, Stewart had not had any involvement with the plaintiff for some time and he would have none thereafter. Finally, by the date the plaintiff met with McKenzie, the plaintiff’s mental injury had manifested itself. Thereafter, and for the reasons given I am satisfied that McKenzie acted reasonably in the circumstances.
291	It is worth reiterating that the plaintiff did not raise as a point of contention that the conduct in which Stewart was engaged was not an investigation into allegations about workplace conduct.  There might have been some scope to enquire whether Stewart was engaged in one or more investigations and, if so, the point at which one end and another commenced.  However, the point of possible distinguishment, and its relevance, if any, was not raised by the plaintiff, and in the absence of any argument on the point, I have proceeded on the basis of a joint understanding that Stewart’s conduct was concerned with an investigation of the plaintiff’s workplace conduct and actions.  
292	Since at least the decision in Tame v New South Wales, (‘Tame’) the central enquiry in tort has been whether the risk of a plaintiff sustaining a recognisable psychiatric illness was reasonably foreseeable in the sense that it was not far-fetched or fanciful.  Tame was another case in that category of cases involving workplace stress.  The High Court, whilst recognising that stress could cause psychiatric injury, nonetheless, held that it was a further and larger step to say that all employers must recognise that all employees are at risk of psychiatric injury from stress at work.  Despite this injunction, courts have not regarded it as too further and too larger a step to take in relation to bullying conduct, for the reasons I have earlier endeavoured to explain. However, Govier suggests that it is a still further and larger step to say that all employees are at risk of psychiatric injury if reasonable care is not taken in the conduct of an investigation. In the abstract, of course, it can just as readily be thought that any employee who finds themselves at the responsive end of complaints or allegations regarding conduct or performance will experience stress or may be susceptible to the development of a mental type injury, even if the processes adopted by an employer are stringent and prescriptive and are adhered to.  
293	Therefore, for all these reasons, I am unable to accept the plaintiff’s claim in negligence as it has been variously expressed.
The Contract Breach Claim
294	The plaintiff pleaded at paragraph 5 of the Claim that her injuries were caused by the breach of either the express or implied terms of her Contract of Employment with the MC.  
295	The documents relied by the upon by the plaintiff as constituting her Contract of Employment are:
(a)	the Contract of Employment dated 6 October 1999;
(b)	the Change in Terms of Employment letter dated 13 April 2011 and the Change in Employment Status and Remuneration Form dated 13 April 2011;
(c)	Healthscope and Non Clerical Employees HSU Agreement 2011-2015;
(d)	Workplace Bullying-Corporate Policy and Procedure dated May 2010; 
(e)	Disciplinary Procedures Policy dated July 2010; 
(f)	the Equal Employment Opportunity Harassment and Discrimination Policy reviewed in December 2006;
296	The plaintiff’s particulars of breach of contract restated each matter of conduct alleged against Stewart both as amounting to bullying and in negligence and as well as against the defendant on the basis of its failure to comply with its Workplace Bullying Policy and Procedure after the plaintiff complained to Tonkin and McKenzie in June 2012. As well it was alleged there had been a failure to comply with relevant Enterprise Agreement in the application of disciplinary action taken by Stewart against the plaintiff and a failure as well by the defendant to apply the processes in that industrial agreement following the plaintiff making known her complaints about Stewart to Tonkin and McKenzie in June 2012. 
297	In addition by sub-paragraph 5(g) of the Claim, the plaintiff pleaded, “and further terms implied into the Plaintiff’s contract of employment with the Defendant: namely, the provision of a safe system of work, safe equipment with which to work, a safe place of work and appropriate supervision of the Plaintiff’s work’”.  Beyond the plaintiff seeking to include as an element of a safe system of work, the controversial limb that a safe system of work includes one free from the foreseeable risk of mental harm in the undertaking of disciplinary procedures, the common law, in any event, imposes a duty of care on an employer to provide an employee with a workplace safe from physical injury or harm. The protection of a worker in this contest is not improved on by a contract term to such effect. The term would need to be implied in order for the contract to have efficacy.
298	The allegation that the plaintiff was required to work in an unsecure workplace at night is lacking a sufficient evidentiary basis, and the content of the obligation to ensure the “appropriate supervision of the plaintiff’s work” remained opaque.  If, however, it is intended to consist of a broader allegation that the plaintiff was supervised by Stewart and this was wrongful, then I reject that the plaintiff’s work was “supervised” by Stewart and, moreover, the plaintiff had no further involvement with him since the receipt of the 7 June 2012 letter. Stewart’s involvement with the plaintiff proved confined to matters of conduct that had been referred to his attention. He was not and nor was it professed, that he was the plaintiff’s supervisor.
299	The parties devoted attention to a number of well-established authorities.  I need not refer to them all. It is a common feature underscored by them that the analysis must always begin with the terms of the contract itself.   
300	In Toll (FGCT) Pty Limited v Alphapharm Pty Limited, the High Court said:
“This Court, in Pacific Carriers Ltd v BNP Paribas, has recently reaffirmed the principle of objectivity by which the rights and liabilities of the parties to a contract are determined.  It is not the subjective beliefs or understandings of the parties about their rights and liabilities that govern their contractual relations.  What matters is what each party by words and conduct would have led a reasonable person in the position of the other party to believe.  References to the common intention of the parties to a contract are to be understood as referring to what a reasonable person would understand by the language in which the parties have expressed their agreement.  The meaning of the terms of a contractual document is to be determined by what a reasonable person would have understood them to mean.  That, normally, requires consideration not only of the text, but also of the surrounding circumstances known to the parties, and the purpose and object of the transaction.”
301	Whether an employer’s workplace policies will be incorporated into an employee’s contract of employment is not always obvious. The answer is not referable to a single and binding authority. The question has often enough proved vexed and the answer, as often as not, factually driven.
302	There are, as will be seen in the reasons that follow, arguments supported by Commonwealth and Victorian authorities that recognise that in some cases, all or some clauses in policy documents do have contractual force, whereas some authorities have determined the question wholly to the contrary.  It will depend upon the parties’ intentions objectively ascertained but with the starting point for reaching a determination on the question being the express language of the contract.  In having arrived at my finding, I have considered the various decisions relied on by the parties and sought to apply the ratio extracted from them to the facts of the proceeding.
Goldman Sachs JBWere Services Pty Ltd v Nikolich (‘Nikolich’)
303	In Nikolich, Mr Nikolich accepted an offer of employment with Goldman Sachs JBWere Services as an associate investment adviser in May 2000.  Prior to his acceptance of the offer, the company provided him with a number of documents including one titled “Working with Us” or, as it came to be referred to in the case, the “WWU”.  The WWU was a significant document of 119 pages. It covered many topics, such as employee health and safety, harassment and conflicts of interest.  
304	A dispute arose between Mr Nikolich and his direct supervisor approximately three years after he commenced employment with the company, which led to him making a formal complaint to the company’s human resources department in July 2003.  An investigation was subsequently commenced, but it was not concluded until December 2003.  During this period of time, the relationship between Mr Nikolich and his supervisor deteriorated rapidly.  Mr Nikolich became extremely distressed and went on to develop a depressive disorder.  He was absent from work for an extended period of time due to his illness, and this resulted in his employment being terminated by the company.  He brought proceedings in the Federal Court, where he alleged the following:
(a)	First, that the company had unlawfully terminated his employment in breach of s170CK of the Workplace Relations Act 1996 (Cth);
(b)	Second, that the company had breached his contract of employment;
(c)	Third, that the company had engaged in misleading and deceptive conduct.
305	At trial, Wilcox J found in the plaintiff’s favour only on the contract claim, in relation to which it was held that certain terms, but not all within the WWU document, formed part of his contract of employment; that the Company breached those terms including by not urgently investigating the matter and resolving the dispute and by not ending the supervision of Mr Nikolich sooner; and that he had suffered psychiatric injury as a result of that breach.
306	The terms of the WWU held to have been breached by his Honour were:
(a)	Health and safety whereby the company had expressed that it “… will take every practicable step to provide and maintain a safe and healthy work environment for all people”;
(b)	Harassment whereby the company expressed that “… all people within the JBWere team will work together to prevent any unwelcome, uninvited and unwanted conduct”;
(c)	Grievance procedures in which the company stated that it is “… committed to make sure that anyone who makes a genuine complaint will be able to discuss his concern confidentially, will be supported by the firm and is not penalised in any way”. 
307	It is a relevant fact, that as his Honour observed, when he commenced with GSJBWS, Mr Nikolich received a copy of the WWU.  He did so in the context that his letter of appointment, signed by the human resources services manager and dated 4 May 2000, contained the following paragraphs:
“General Instructions 
 From time to time the Company has issued and will in the future issue office memoranda and instructions with which it will expect you to comply as applicable.  If you have any queries at any time about which memoranda and instructions apply to you, you should raise that question with me or with Colin.
 Our employment commitment is a long-term and the Company will endeavour to provide every opportunity for you to be effective in your role.”
308	The company appealed the decision.  Chief Justice Black and Marshall J. dismissed the appeal, except in relation to costs.  However, all members of the Full Court disagreed with Justice Wilcox’s findings that the terms in the WWU relating to harassment and grievance procedures formed part of the contract of employment.  Instead, it was the term relating to health and safety in the WWU itself that all members of the Court were satisfied formed part of the plaintiff’s contract of employment.
309	Chief Justice Black recognised that the test was an “objective” one, and said that –
“What matters is what the language used, in context, would have led a reasonable person … to believe.”  
310	Marshall J came to a similar conclusion.  His Honour also referred to the earlier decision in Riverwood International Australia Pty Ltd v McCormick.  
Nikolich distinguished
311	The circumstances of how the various documents that came to be accepted by Mr Nikolich as part of the suite of documents held to govern his employment and on which he sued his former employer is not akin to those of Ms Lloyd whose evidence was that she had limited knowledge of any of the policies upon which she now relies. She said she thought she had seen the harassment policy and it would have likely been kept in the policies and procedures file at the main reception desk. She said she was “personally aware” of the policies in that folder. She said she presumed the harassment policy was “part of my job duties.” She said that “we were meant to read over all the policies and procedures and when new ones came through we had to know them and go through them”. Of the Discipline Procedures policy, the plaintiff initially said in evidence in chief that although she could not recall how it was delivered to her, that she had read it in the course of her employment but in cross-examination said she could have looked at it but was unsure. She said she recalled specifically looking at the Bullying policy in April or May and, although she did not specify the year, the context suggests she intended to refer to 2012.  
312	On appeal in Nikolich, their Honours reasons in support of their conclusion were principally these:
(a)	First, Mr Nikolich had been provided with a copy of the WWU when he was first offered employment, and prior to signing the letter of offer which had referred to “office memoranda and instructions” that would be issued by the Company;
(b)	Second, Mr Nikolich had been required to read the WWU document and sign forms contained within it, including an acknowledgment relating to the Company’s Health and Safety Statement;
(c)	Third, the term relating to Health and Safety was expressed in promissory language (for example the language of contract), whereas other terms were expressed in the language of advice or direction.
313	It was regarded as an important consideration by the Full Court that employment contracts that do not contain an express term regarding health and safety have an implied term that the employer will take reasonable care to provide a safe place of work and a safe system of work in any event and comply with relevant statutory duties regarding the same and, therefore, the term in the WWU that provided the same merely extended the legal duty higher, although not significantly so.  In other words, there was a broad equivalence of the content of the statement contained in the WWU with an employer’s common law duty of care to an employee that the law will in any event imply into a contract of employment. Therefore, although the promise to take “every practicable step to provide a safe and healthy working environment” may be putting the standard required by an employer somewhat higher, it was thought not to be very much higher.  A like result can apply in regard to the obligations expressed in Clause 13 of the October 1999 contract between Ms Lloyd and the defendant.
314	In a number of respects the decision on appeal in Nikolich, as opposed to the decision at first instance, did not deviate appreciably far from the established norm that in approaching the task of ascertaining the parties’ intention, the starting point will be the language of the contract and its context.  
McCormick v Riverwood International (Australia) Pty Ltd (‘Riverwood’)
315	Preceding Nikolich, but referred to in it, and comprising another of the authorities relied upon by the plaintiff, is Riverwood. At first instance, Weinberg J (whose approach was upheld on appeal) on appeal set out the following principles: 
“In ascertaining the meaning of an expression contained in a contract such as the requirement that the applicant “abide” by all “Company Policies and Practices currently in place, any alterations made to them, and any new ones introduced”, the approach to be adopted differs from that taken in statutory interpretation.  It must rest on the premise that the contract was made in good faith with the object of at least potential mutual benefit by due performance.  
 The Court approaches the task of ascertaining the meaning of the parties’ expressions from an objective point of view.  In the case of a disputed clause in a commercial agreement ‘the essential question is what would reasonable businesspeople in the position of the parties have taken the clause to mean’: Schenker & Co (Aust) Pty Ltd v Maplas Equipment and Services Pty Ltd [1990] VR 834 at 840 per McGarvie J.  In Antaios Compania Naviera SA v Salen Rederierna AB [1985] AC 191 at 201 Lord Diplock said:
	‘… if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense.’
 In Cheshire & Fifoot’s Law of Contract (7th Aust ed, 1997) it is stated (p345) that:
 In interpreting the expressions of the parties, the court will consider them in their context.  Except to the extent to which evidence is inadmissible, the court will as a matter of course take into account the objective background of the transaction, that is, its factual matrix, genesis and aim, and the common assumptions of the parties.”
316	On appeal in Riverwood, North J emphasised what he considered to be the mutuality of obligation discernible in the language noting: 
“The association of the expression “abide by” with the reference to the manual, essential characteristics of which have been analysed earlier in these reasons, suggest that the clause was intended to oblige Mr McCormick to comply with his obligations and also to signify that Mr McCormick had accepted an offer from Riverwood to the effect that it would comply with the obligations imposed on it by the manual.  Thus, the clause reflected the parties’ intention to offer and accept mutual obligations in accordance with the provisions of the manual.  The fact that the clause refers only to “You” is consistent with this construction.  While Mr McCormick agreed to abide by the manual, he was in part responding to Riverwood in that he agreed to accept its compliance with its obligations under the manual.  The phraseology of the clause was proffered by Riverwood.  Mr McCormick’s acceptance carried with it an acceptance of Riverwood’s offer to abide by the manual by conferring the benefits provided in the manual in favour of Mr McCormick.”
317	Mansfield J agreed with North J, but paid more regard to the evidentiary context, noting: 
“As discussed earlier, in my judgment, the significant facts known to the appellant at the time were that it had policies, that those policies included the application of the redundancy agreement (or its predecessors) to its employees, and that those policies were contained or partly contained in the manual.  It also knew of the contents of the manual generally.  The nature of its contents, in large measure, provided for the way its employees would be treated or the benefits for which they may be eligible.
 The evidence of the respondent was that he had a general understanding of the existence of some redundancy agreement in existence, but he did not specifically know of the manual.  It can readily be inferred that he apprehended that the appellant had some policies and procedures, for that is what the policy clause in the letter referred to, but he did not give evidence of knowing of the detailed content of any specific policies.  The degree of his knowledge is not commensurate with that of the appellant.  That may often be the case in circumstances such as those confronting the respondent when he signed the letter.  He had by then been employed in the business generally for many years, and by the appellant for some months.  His general understanding is, however, consistent with the more specific knowledge of the appellant.  In the relevant sense, in my view, the facts known by the appellant were known also to the respondent.
 In the light of the factual matrix referred to, I share the conclusion of the learned trial judge that the letter incorporates by reference the terms set out in the manual from time to time including the redundancy agreement.  I further agree with the conclusion that the presumed intention of the appellant and the respondent, by reason of the policy clause in the letter, was that the respondent would receive the benefits of the policies of the appellant in the manual as they applied to him, including under the redundancy agreement (subject to that policy being changed by the appellant).  The agreement ‘to abide by’ those policies, in the circumstances, means that the respondent would receive or enjoy the benefits provided for by those policies but only according to their terms, and would himself comply with the terms of those policies as they applied to him.”
318	His Honour next examined the policy itself in order to consider what role its contents played in determining the question of whether they might, as objectively ascertained, reveal an intention either not to be part of the contract or to be included in the contract.  His Honour said:
“I do not consider that the contents of the manual demonstrate, as the appellant contends, that it did not intend to be contractually bound to comply with its policies (subject to their alteration).  There are certain policies where such an intention is clear from the context.  One example is that whereby it expects its employees to maintain the highest standard of corporate conduct, but it agrees not to criticise any employee for adverse consequences which flow from adherence to that standard.  It is most unlikely that the appellant envisaged that it could blithely ignore its part of that policy, or at least could do so with legal impunity.  Its health safety and environment policy also has mutual obligations.  It may also be observed that, in general, its policies are expressed in terms which are entirely apt to be treated as expressing mutually enforceable obligations; they are clear, precise, direct and mainly deal with matters which one might expect to be encompassed within a particular employment contract.
 Nor do I consider that the fact that it was contemplated by the policy clause in the letter that the appellant might change its policies from time to time, or introduce new policies, signifies that it did not intend to be contractually bound to the respondent to comply with its policies from time to time.  Its power to change its policies, or to introduce new policies, from time to time would be constrained by an implied term that it would act with due regard for the purposes of the contract of employment: eg Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 63, 137 - 138, so it could not act capriciously, and arguably could not act unfairly towards the respondent: cf Ansett Transport Industries (Operations) Pty Ltd v Commonwealth (1977) 139 CLR 54 at 61.  It might also be a power which, by implication, must be exercised reasonably having regard to the nature of the contract and the entitlements which exist under it: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 28 NSWLR 234 at 279-280 per Handley JA.  There is no issue as to the extent of any such implied constraints on the exercise of that power in this matter.  Byrne v Australian Airlines Ltd (1995) 185 CLR 410 does not, in my view, point to any different conclusion in the particular facts of this appeal.  It concerned the question whether a clause in an industrial award was by virtue of that character to be implied into a contract of employment: see per McHugh and Gummow JJ at 446.  National Coal Board v Galley [1958] 1 All ER 91 provides an example where the terms of a contract of employment included terms incorporated by reference to a ‘national agreement’ which it was contemplated might be altered or substituted over the period of employment.”
319	Subsequent to Riverwood, in Akmeemana v Murray, Davies J rejected a submission by the employer that a policy which would operate in its favour but somewhat harshly to the employee could, when it was formulated some months after the contract of employment, constitute part of it.  His Honour appears to have adopted the d limitation identified by Mansfield J at paragraph [152] in Riverwood.  
Romero v Farstad Shipping (Indian Pacific) Pty Ltd (‘Farstad’) 
320	Another of the primary authorities relied on by the parties is Farstad, a case that proved to be a litigious saga with extensive proceedings, various findings and appeals over many years.  
321	Ms Romero was an officer on a supply ship.  She experienced difficulties with her new Captain during a 12-day voyage.  Ms Romero disembarked the ship and three days later raised her concerns with management in an email.  Ms Romero, however, did not make a ‘formal complaint’ under the harassment policy.  Ms Romero’s manager then complained about her competency and temperament. Farstad commenced an investigation.  It investigated Ms Romero’s concerns along with the Captain’s complaint.  It directed Ms Romero to attend a meeting and, during that meeting, questioned her intensely about her competency.  
322	Ms Romero’s letter of engagement provided:  
“You will be expected, if required, to serve on any vessel owned or operated by Farstad Shipping and be flexible in regard to availability.  Whilst every attempt is made to accommodate individual requests in allocation to vessels, the decision of the Ship Manager and HR department will be final.  In addition, all Farstad Shipping Policies are to be observed at all times.”
323	Ms Romero was inducted into the organisation’s policies at the commencement of her employment.  She was regularly reminded of the policies and asked to re-read the policies. She had to sign an acknowledgement that she had read them.
324	Farstad argued that the policy was merely a direction from an employer to employee.  The Court disagreed, saying:
“The wording of the letter of offer taken with the importance of the Policy terms, the education of employees to reinforce the terms of the Policy are all factors leading to [the] conclusion [that the policy is contractual].  While some parts of the Policy may have been aspirational and some parts directive, Farstad’s obligations in relation to dealing with ...  complaints ...  were contractual promises given in exchange for employees being obliged to comply with the behavioural requirements imposed on employees by the Policy.
325	The Full Court accepted that the company’s Workplace Harassment and Discrimination Policy formed part of the employee’s contract of employment. The Court’s reasons addressed a number of considerations that informed its conclusion and these included:
(i)	the wording and scope of the policy.  The Full Court found that although some parts of the policy were merely “aspirational” or “directive”, the specific obligations relied upon by the employee were “clearly ascertainable” and “quite capable of precise identification”;
(ii)	the fact that the policy was accompanied by an education campaign at the time of the offer of employment, and there was regular reinforcement of the policy;
(iii)	that the employer provided the policy at the same time as the contract of employment; and
(iv)	the practical conditions of employment on a ship, where a calm environment is important from a safety perspective.  
326	Although both Riverwood and Farstad support the principle that an express right by the employer to unilaterally vary a policy will not prevent the policy having contractual force, this approach has been questioned in Westpac Banking Corporation v Wittenberg where, in obiter, Buchanan J observed that the correct approach to characterising a workplace policy that gave an employer discretion to vary the policy was that the policy was not “a mutual statement of contractual rights and obligations” and, therefore, such a lack of mutuality would result in the policy as not contractual in nature.
327	The authorities to which I have already referred also identify that it is a highly persuasive consideration whether an employee is given access to a policy prior to commencing employment and is required to sign a document acknowledging that they have read it. For example, in McKeith v Royal Bank of Scotland Group PLC; Royal Bank of Scotland Group PLC v James, the fact that the employer’s redundancy policy was a closed policy and unknown to the employee was fatal to his claim that it had been incorporated into his contract of employment and was contractually binding on the employer.
Bau v State of Victoria (‘Bau’)
328	Bau was a damages proceeding involving a claim in negligence and alternatively a breach of contract resulting in psychiatric injury caused by the plaintiff’s employment in the Special Projects Unit (SPU) of the Victoria Police over a period of approximately ten months, including working in a stressful environment where she was subjected to harassment by an Inspector head of the SPU.  
329	The appellant’s statement of claim alleged that she was employed by Victoria Police pursuant to an employment contract, which incorporated terms based on various documents setting out the defendant’s human resources management policies and documents.  In the alternative it was pleaded that the defendant failed to comply with the terms of the human resources policies which were implied into the appellant’s employment contract in order to give business efficacy to it.  
330	The Court rejected the application of Riverwood and Nikolich, and said:
“In my view the learned trial judge was right to regard these decisions as being ‘not to the point’.  Neither Riverwood nor Nikolich provide a sound basis for the incorporation by reference of parts of the respondent’s policies into the appellant’s contract of employment.  I take that view for three main reasons.
 First, in both cases, the incorporation argument was founded on a term of the employment contract which referred in some way to the employer’s policies.  In this case, the Court has not been provided with a written contract of employment containing such a term, and there was no evidence that there was any oral term to this effect.  Section 14(4) of the Accident Compensation Act does not overcome that problem.
 Secondly, the decisions in Riverwood and Nikolich were based on the court’s view as to the intention of the parties, which was based on a consideration of the facts surrounding the entry into the employment contract.  In this case, there was no written contract of employment, and no evidence was led regarding the intention of the parties, or facts which might support the incorporation argument.  The only evidence given by the appellant concerning the respondent’s policies was that she was aware that there were posters in the office regarding bullying, harassment and victimisation.  This somewhat vague evidence is entirely inconsistent with the notion that the parties intended and understood that the policies were of contractual effect.
 Thirdly, I do not consider that the statements in the Victoria Police human resources policy relied on by the appellant impose sufficiently clear and precise obligations on the employer to be regarded as contractual.  Some of these terms are, in my view, merely aspirational.  This applies for example to the statements that the respondent ‘will aim to prevent inappropriate workplace conflict behaviours’, and ‘is committed to a workplace free from discrimination, sexual harassment and victimisation’.  
 Other statements, including statements that the respondent ‘will not tolerate inappropriate workplace behaviours’ are concerned with the conduct that is expected of employees, rather than making promises about the conduct of employees.  Even if aspects of the policies contain statements that might properly be classified as promissory in nature, the appellant has failed to establish that the policies were provided to the appellant, or to police officers generally, or that the respondent has acted in breach of the policies.”
Summarising the legal position
331	Having reviewed the principal authorities, I am satisfied that the following principles fairly reflect the position at law.  
332	First, a policy may be contractually binding if incorporated by reference in the employment contract (express reference or incorporation) or as an implied term of the contract (implied incorporation).  
333	Second, a policy can be expressly excluded from or included in the employment contract by a statement in the policy or possibly the contract to that effect.  For example the relevant policies in Yousif v Commonwealth Bank of Australia (‘Yousif’) had no contractual force because the introduction to the policy manual stated that “the manual is not in any way incorporated as part of any industrial award or agreement entered into by the Bank, nor does it form any part of any employee’s contract of employment”. 
334	Third, since Riverwood, three key factors have emerged from the principal authorities.  The ﬁrst of these, is the language of a policy clause in the contract.  A policy clause which requires the employee to “abide by” or “comply with” policies will usually mean that the employee is bound by obligations in the policies but is also entitled to receive the beneﬁts contained in those policies.  Although not expressed as being subject to the policy, the employer has expressed contractual obligations by virtue of the employer offering, and the employee accepting, express contractual rights.  The second consideration is the language of the policy sought to be relied on. An objective test is applied – would a reasonable person in the position of the promisee conclude that, having regard to the surrounding circumstances, the promisor intended to be contractually bound by the statements contained in the policy?  Context is critical.  An employer “commitment” to a workplace issue may, or may not, be expressly incorporated into the contract depending on the circumstances.  Descriptive language in the form of direction or advice and statements which reveal more than anything else, the employer’s aspirations on a particular topic are not generally contractual.  While a signed policy is a surrounding circumstance which is suggestive, but not conclusive of a contractual purpose and can conﬁrm that the employee has read and understood the policy, an unsigned policy does not reverse a ﬁnding that the employer intended to be contractually bound.  If the employee receives the policy after signing the contract, the employee’s inability to knowingly commit to the policy terms suggests that the parties did not intend to be contractually bound.  
335	Fourth, contracts may include a policy clause which enables an employer to unilaterally vary or introduce new policies.  The law has recognised a further restriction on the express incorporation of a policy, which is that either a variation to a current policy or a new policy issued to existing employees, whilst not appearing to require the employer to obtain the employee’s agreement to the change, must  rather satisfy an implied term.  Mansﬁeld J expressed it as follows in Riverwood when he said:
“Its power to change its policies, or to introduce new policies, from time to time would be constrained by an implied term that it would act with due regard for the purposes of the contract of employment: eg Hospital Products Ltd v United States Surgical Corporation (1984) 156 CLR 41 at 63, 137–138, so it could not act capriciously, and arguably could not act unfairly towards the respondent: cp. Ansett Transport Industries v Commonwealth (1977) 139 CLR 54 at 61.  It might also be a power which, by implication, must be exercised reasonably having regard to the nature of the contract and the entitlements which exist under it: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 28 NSWLR 234 at 279–80 per Handley JA.”
The Plaintiff’s Employment
336	The plaintiff’s employment with the MC commenced in 1982. From 1982 until 1999, she was employed and worked without a written contract. During this period of time and even after the plaintiff’s employment came to be governed by the 1999 written contract, none of the policies relied on by the plaintiff existed. The Workplace Bullying Policy was not adopted until May 2010 and the Disciplinary Procedure Policy was not adopted until July 2010. The Equal Opportunity: Harassment Policy was the first of the policies relied on by the plaintiff as forming part of her Contract of Employment having been adopted in May 2005. 
337	The plaintiff’s Contract of Employment was subsequently varied by a letter dated 13 April 2011 and described as a “Change in Terms of Employment” along with an accompanying “Change in Employment Status and Remuneration Form”. 
338	The “Change in Terms of Employment Letter” read:
“These and all other conditions of employment are contained in the attached Change in the Employment Status and Remuneration Form.
 This Agreement constitutes the entire Agreement of the parties about the subject matter and any previous Agreements, understandings and negotiations on that subject matter cease to have any effect.  All other conditions of employment remain unaltered.”
339	The “Change in Employment Status and Remuneration Form” was divided into sections.  Section A contained the employee details.  Section B dealt with the nature of change being brought.  It was expressed to be, “Change in hours (it appears that Linda Lloyd’s Hours changed to 38 hours per fortnight prior to centralisation of payroll.  No supporting documentation is at hand.” The effective date of the change was 4 April 2011.  Section C was headed, “Type of Change Requested” and it appears it should be read and understood as confirmatory of the plaintiff’s part-time status.  The plaintiff was identified as working in the Patient Services Department. She had been designated receptionist and this was altered to “receptionist – Admin Assistant, Grade 6 level, Year 5”.  Section D made provision for signatures, and the form was signed by the plaintiff and Christine Dobson, who was designated “department manager” and Andrew McKenzie as “general manager”.
340	Naturally enough, the question arose as to the meaning to be applied to the language contained in the Change in Terms of Employment Letter.  Firstly, “These and all other conditions of employment are contained in the attached Change in the Employment Status and Remuneration Form”.  Secondly,  “All other conditions of employment remain unaltered” and, thirdly, “This Agreement constitutes the entire Agreement of the parties about the subject matter and any previous Agreements, understandings and negotiations on that subject matter cease to have any effect”. 
341	An ordinary reading of the words suggests they were intended to refer to the conditions of employment contained in the April 1999 Contract of Employment which at the date it was agreed between the plaintiff and the defendant did not include the policies relied on by the plaintiff because they had not come into existence.
342	Mr Worth submitted that the “subject matter” of the Change of Terms of Employment letter consists only of the plaintiff’s position description and the number of hours she was working.  Consistent with the Change of Terms of Employment letter, by 2011, and in the first half of 2012, the plaintiff was working as a permanent part-time receptionist, 38 hours per fortnight, performing shifts every Monday and Tuesday from 3.00pm till 9.00pm and also shifts from around 1.00pm to 9.00pm every second Saturday and Sunday.  
343	Mr Worth relied on the language, “All other conditions of employment remain unaltered” as evincing an intention to refer to those contained in the Contract of Employment dated 6 October 1999.  I agree.  It was not suggested otherwise by the defendant.  However, again, the effect of the plaintiff’s submission is that the Change of Terms of Employment letter did not incorporate the policies now advocated for on her behalf because they did not exist on 6 October 1999.  Furthermore, It was open to the employer to have incorporated the policies in the plaintiff’s 2013 “Change in Terms of Employment” letter because by then, the policies had come into existence, but instead, the letter from the employer confirmed that the plaintiff’s terms and conditions of employment were those expressed in the April 1999 Contract that “remain unaltered”.  
344	The plaintiff’s particulars of Claim included that the corporate policies were incorporated by express reference by reason of the operation of Clauses 13 and 14 of the 6 October 1999 Contract of Employment or, alternatively, implied “to give efficacy to the contract”.   
345	The Contract of Employment contained 17 clauses.  Only one expressly required compliance with policies.  And its language was plain.  Clause 13 provided that:
“The Employee shall follow safe work practices and comply with the Hospital’s occupational health & Safety policies and procedures including compulsory inservice attendances for Aggression Management and Fire Drill once per annum.”
346	The words used are directed specifically at the plaintiff and impose a unilateral obligation on her including obligations particular to in-service attendances for aggression management and fire safety drills.
347	  Clause 14 of the contract of employment provided that:
“The Employee shall be employed subject to the policies and by-laws of the Hospital as amended from time to time.”  
348	There was no evidence of the content of the by-laws or other policies that may have been in place at the time and referred to in Clause 14.
349	The defendant submitted that the plaintiff’s Contract did not incorporate the various policies and procedures relied on as terms of her Contract of Employment other than the defendant’s Occupational Health & Safety policies provided for by Clause 13. It argued that the Change in Terms of Employment letter dated 13 April 2011 made no reference to the Disciplinary Procedures policy.  It furthermore submitted that Clause 14 does not require compliance with the Disciplinary Procedures Policy or the Workplace Bullying Policy or the Equal Opportunity and Harassment Policy and the language in Clause 14 that the plaintiff’s employment shall be subject to the policies of the hospital as amended from time to time did not create a contractual term upon which suit for breach may be brought by her for non-compliance with them.  
Consideration
350	I have had regard to the following facts. I have considered that the Policies were not capable of being provided to the plaintiff when she signed her contract of employment in 1996. The plaintiff’s evidence subsequently about the Discipline Procedures policy and its provenance was scant and equivocal. When addressing the harassment policy, the plaintiff said “it” was part of her job duties and that it was her belief that the policies and procedures would be followed. 
351	The Healthscope Disciplinary Procedures policy was only communicated to the plaintiff by being placed in a file at reception. There is no evidence a copy of it was given to the plaintiff. There is no evidence that the policy was ever reinforced by the defendant or was the subject of education by the defendant beyond the plaintiff believing it and others should be read. She was not required to sign an acknowledgement of receipt of any of the Policies
352	Overall, and on balance having weighed up the competing facts, in my judgement the evidence militates against the notion that the parties intended and understood that the Policies were expressly incorporated as a term of her Contract of Employment. 
353	I have considered that whilst unlike the appellant in Bau, the plaintiff can of course point to her written Contract of Employment and to Clauses 13 and 14 and a reference to “policies” and, therefore, Neave JA’s comments in Bau by way of the first point of distinguishment is not applicable. The second point of distinguishment to Riverwood and to Nikolich identified in Bau is apposite because, as in Bau, there is no evidence regarding the intention of the parties beyond the express reference to health and safety in Clause 13 and to amending existing policies and introducing new policies in Clause 14, but as was the case with Ms Bau, Ms Lloyd’s evidence that I have earlier referred to, was not instructive of an intention that the parties regarded themselves as contractually bound by the policies at any of the later time when they were provided to the reception or at any other times when she may have become generally aware of them or read one or other of them.  
354	There was of course ample opportunity for the defendant to incorporate the Disciplinary Procedures Policy or the others if it had intended them to becomes terms of the Contract of Employment  because, although it they did not exist at the date of the execution of the April 1999 Contract of Employment, they did exist at the date of the Change in Terms of Employment letter. Whilst the law accepts that new policies may be introduced as contractual obligations in accordance with Mansfield J’s prescription in Riverwood, I am not satisfied it was the parties’ intention that the Policy became a term of her contract of employment. 
355	Moreover, the language of the Discipline Policy belies contractual intention.
The Discipline Procedures Policy
356	The Disciplinary Procedures policy is dated July 2010. 
357	The SCOPE of the Policy is expressed to apply “to all Healthscope facilities and business units in Australia’” It is not expressed to apply to the defendant’s employees generally or the plaintiff.
358	The Policy has an expressed PURPOSE and POLICY and PROCEDURE.
 PURPOSE 
“To provide employees and all management with a recognised process to remedy and resolve continuing problems or unacceptable employee performance or conduct.
 The disciplinary process is designed to ensure that when deviation from acceptable standards has occurred, employees are aware of and comply with the standards of performance that are expected of Healthscope employees.  This policy is designed not only to comply with the industrial legislation but also to provide a framework that ensures fair and due process is observed.

…. 
 POLICY
 The Healthscope policy on Disciplinary Procedures is:
•	Healthscope has a clearly defined process for remedying and resolving problems or unacceptable employee performance or conduct. The severity of the misconduct and the situation surrounding may impact on the nature of disciplinary action taken.
•	The process includes consultation with the employee, counselling and warning where necessary, where employees are clearly informed about their performance with the aim of rectifying any problems.
•	Healthscope will endeavour to ensure that all employees are treated consistently, fairly and reasonably when an unacceptable behaviour or performance issue has been identified, and that all ethical and legal considerations are properly satisfied.
•	The Disciplinary Process will be accurately and thoroughly documented on the Disciplinary Procedure Form.
•	Any dismissal of an employee will be in accordance with the requirements of the relevant Federal legislation.
PROCEDURE

1. 	Due Process

Healthscope believes that employees have the right to know the likely outcomes of failing to meet expectations.

•	Employees have the right to a consistent and predictable set of rules and regulations.
•	Employees have the right to be fairly disciplined based on factual evidence.
•	Employees have the right to challenge facts and present a defence to the allegations.
•	Employees have the right to progressive discipline, unless summary dismissal is warranted.
•	Employees have the right to be considered individuals.
 2. 	Examples Of Misconduct That May Warrant Disciplinary Action
 To ensure orderly operations and to provide the best possible work environment, Healthscope expects employees to follow Codes of Conduct that will protect the interests and safety of everyone.  Examples of breaches of codes of conduct or other misconduct that may result in disciplinary action (up to and including termination) shall include, but are not limited to:
•	…
•	Falsification of timekeeping records
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•	Insubordination or other disrespectful conduct
•	…
•	Excessive absenteeism or absence without notice
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•	Unauthorised absence from the work area during the workday or shift
•	…
3. 	Factors Influencing the Severity of a Disciplinary Action

Depending on the individual circumstances, various factors may be taken into account when determining the appropriateness of any particular form of disciplinary action. These are:

•	Degree of severity of the situation
•	Employees length of service
•	Undue provocation, if any, that may have led to the situation
•	The number of previous offences
•	The nature of any previous offences
•	Previous warnings or other disciplinary action for previous offences
•	Rules: Are they clear? Are they reasonable? Have they been communicated to the employee?
•	Community standards
•	Employee’s pattern of conduct
•	Inappropriate supervisory practices
•	Is the penalty reasonable and appropriate to the offence?
 4. 	Appropriate Persons to Conduct Disciplinary Action
 The following people have authority to undertake disciplinary action (‘Appropriate Persons’): 
Employee and Healthscope facility		Department Head
				General Manager
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5.	The Employee Discipline Process

Employees whose behaviour or work performance is deemed as unacceptable are to be counselled and/or disciplined using the following 4-step process, using the standard Disciplinary Procedure Form.
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In order to ensure that Healthscope satisfies its legal obligations and that due process is followed, it is important that the steps of this disciplinary procedure are accurately and thoroughly documented on the Disciplinary Procedure Form, as testimony of the true record of proceedings.  Should the employee refuse to sign, a note to this effect is to be recorded on the form.

If after any warning, a period of twelve months elapses without any further warnings or action being required, all adverse reports relating to the warnings will be removed from the employee’s personnel file.
Step 2 through 4 should take place with at least two (2) Healthscope representatives present. The employee who is the subject of the disciplinary process must be given the option of having a representative present.
5.1 	Step 1 - Counselling

•	Prior to enacting the disciplinary procedure, the Appropriate Persons should consider whether it would be suitable to attempt to resolve the matter by counselling the employee. This is an important step because it may negate the need for the matter to go any further. However, under some circumstances it may be appropriate proceed to proceed directly to disciplinary proceedings at Step 2.

•	The intent of using counselling procedures is not to inflict punishment upon an employee, but rather to identify and explain to them the unacceptable behavioural performance against expected standards.

•	The employee should be clearly advised of the unacceptable performance or behaviour issue, including relevant examples, dates and times.

•	The employee should be clearly advised of the expectations of their position on their performance.

•	The employee should be given the opportunity to provide their comments, feedback, and any relevant explanation for their behavioural or performance.

•	Once all the issues have been discussed with the employee the Appropriate Persons must decide on the appropriate course of action.

5.2 	Step 2 - First Warning (written)

•	Where the Appropriate Persons believe disciplinary action is required, the employee (who may choose to be represented by a union representative or other advocate) is to be informed of the problem and be given the opportunity to respond and provide a reason(s) for his or her actions.

•	If, after discussion with the employee and having taken employee’s response into account, the Appropriate Persons believe disciplinary action is appropriate, the employee is given a warning.

•	The Appropriate Persons should then set out how the employee can or should improve their behaviour or performance setting a reasonable time period over which measurable improvement should take place.

•	Appropriate counselling, education and/or assistance may be offered.

•	The discussion is to be summarised in writing by one nominated Appropriate Person in the Disciplinary Procedure Form. The Employee should be given an opportunity to supply comments in Section 5 of the Form. Both the Appropriate Person and the employee (and witness if present) should sign the form confirming the discussion and to acknowledge and confirm its correctness.

•	The Disciplinary Procedure Form is placed on the employee’s personnel file and a copy given to the employee.

•	If appropriate, having regard to the nature of the issue, e.g. performance issue, the employee should be informed that there might be a further meeting to assess how the employee has subsequently performed compared to required standards. 
359	The clauses of the Disciplinary Procedures policy alleged to have been breached by the defendant comprise the Purpose, together with Clauses 1, 4 and 5.  
360	I can address Clause 4 of the Policy at once. It designates appropriate persons to conduct disciplinary action and for a person such as Ms Lloyd, who was an ordinary employee of the defendant that would have been, the department head and/or the general manager.  The plaintiff contended the Policy was breached by the defendant, because Stewart was neither a department head nor the general manager.
361	Mr Worth argued that the proper person authorised to address any discipline matters according to the Change in Terms of Employment letter dated 13 April 2011 was the patient services manager and the department manager, as identified in the Change in Employment Status and Remuneration Form. He submitted, therefore, that the process was usurped by Stewart and was contrary to point 4 of the Disciplinary Procedures Policy.  However, even if the policy was contractual, the appropriate persons expressed at point 4 of the Disciplinary Procedures Policy is the department head or general manager and not the patient services manager.  As to Ms Dobson, Stewart said he sat above her in the chain of hierarchy.  I have accepted his evidence and, therefore, would not have been satisfied the actions amounted to a breach of contract.  I have already concluded that I am satisfied that Stewart can be regarded as de facto head of department.  He said he was, and this was not contradicted.  There was no evidence of an incumbent holding the title of ‘Head of Department’.  Stewart’s evidence was that he “sat more senior than Christine [Dobson] and my purview was to look after that department so I also argue that I was actually the Department head”.  He went on to say of Christine Dobson that “She was the patient services manager, as I’ve said to you, the Department head could have been regarded as me”.  When Mr Worth suggested to him by that the department head was the patient services manager, Christine Dobson, he replied, “I don’t think that’s necessarily accurate”.  Thus, and in any event, if I am wrong and the Policy was a term of the plaintiff’s contract then I would not have been satisfied that a breach was occasioned by the exercise of authority being undertaken by Stewart.
362	Mr Worth argued that Stewart’s actions in the period January to June 2012 were not in compliance with the Purpose, Clauses 1 and 5 of the Policy specifically by reference to the following matters:
•	The failure to properly investigate the patient complaint of January 2012;
•	The sending of the letter dated 29 February 2012;
•	The conduct of the meeting in March 2012;
•	The failure to conduct any proper investigation into the patient complaint from May 2012;
•	The sending of the FWWL dated 15 May 2012; and
•	The sending of the letter dated 7 June 2012.
363	 Each of these alleged breaches of the Policy, and hence of the Contract of Employment, were separately relied on by the plaintiff by way of conduct and behaviour that constituted bullying by Stewart.  
364	The plaintiff claims that Stewart’s conduct was a breach of due process to which the plaintiff was entitled in accordance with the Discipline Procedures policy.
365	Plainly enough, the language used to identify the obligation to afford due process is expressed broadly. Here, the plaintiff was presented with the opportunity to challenge facts although it is recognised the facts were not exhaustive or accompanied by particulars, and Stewart’s decision in advising the plaintiff that she would be closely watched and reviewed was based on a taking into account alleged prior conduct about which the plaintiff was left unawares and had not been provided an opportunity to address. However, throughout, the plaintiff was made aware of the “likely outcomes of…failing to meet expectations”.
366	It seems to me, that it would require a considerable “reading in” to interpret the Due Process clause as contractual. For instance, how is the right to be “fairly disciplined” to be calibrated with the four step process elsewhere contained in the Policy? Are they mutually exclusive? Is the reference to “factual evidence” intended to embrace all the facts regardless of whether some of them are of primary importance and others only marginal, and upon whom and by what considerations, are such judgements to be made? Is it a contractual breach for which suit for damages for mental harm be contemplated in the event of the omission of relevant facts or exculpatory facts? How is the right to challenge facts and present a defence to me made out? Is legal representation permissible and if not, why not? If it is, at what point in the process? None of this is expressed in the language of the Policy and it is difficult to see how such a lack of prescription can impose contractually binding obligations or that a non-adherence to them would have been anticipated as giving rise to a contractual breach for which damages for mental harm might flow. Moreover, how is the direction expressed in this part of the Policy, that in the provision of “due process”, employees “have the right to be considered individuals” to be identified and informed?
367	The language used in the “Policy” box of the Disciplinary Procedures policy is expressed in broad terms by way of the aims to be achieved, although it also stipulated that the “Disciplinary Processes will be accurately and thoroughly documented on the ‘Disciplinary Procedure Form’.” It seems very obvious that Stewart did not complete such a form but even it could be construed that such a failure did amount to a contractual breach, then I would not have been satisfied that the breach was causative of mental harm to the plaintiff and, moreover, the breach is not material.
368	Mr Worth submitted that Stewart’s actions from January to June 2012 did not comply with the Disciplinary Procedures policy by reason of the failure to properly investigate the patient complaint of January 2012 and, presumably, before sending the letter of 29 February 2012 in its terms; sending the First Letter; the holding of and conduct of  the meeting on 26 March 2012; a failure to conduct any proper investigation into the patient complaint from May 2012; a failure by the sending of the FWWL dated 15 May 2012 and a failure by sending the letter dated 7 June 2012.   
369	The language used in the “POLICY” box relevantly includes that process related to unacceptable performance or conduct and includes “counselling and warning where necessary, where employees are clearly informed about their performance with the aim of rectifying any problems”. Plainly enough there was consultation with the plaintiff throughout the conduct of the various issues that arose and identified by the plaintiff.  Insofar as the plaintiff alleges a failure on Stewart’s part to “properly” investigate the complaint January 2012, it was not in any event his responsibility to do so in accordance with any provision contained in the Policy.  As well, the Policy does not prescribe what a proper investigation would comprise. Certainly the Disciplinary Procedures policy makes no provision for the manner in which an investigation is to be conducted in order to render it a “proper” investigation and one that comports with the Policy.  The expressed “Policy” in the document provides a framework of transparency and, understandably, guidance in the affording of the opportunity to an employee to know and be made aware of the allegations relied on, and to be disciplined on the basis of factual evidence and to be able to respond to allegations, but little else is disclosed to guide the investigator. 
370	Self-evidently as I have previously identified, the provision by Stewart of the requisite factual matters was sorely lacking in a number of key respects such as the times relating to taking longer breaks between shifts but, of course in regard to that matter, Stewart recorded that the allegation had been denied by the plaintiff and the extent of his rebuke, was for her to be mindful of the matter going forward as a matter of fairness.  
371	Overall, in my judgement, the POLICY is expressed in terms that belie language intended to create legal binding obligations. The statement that: “Healthscope will endeavour to ensure that all employees are treated consistently, fairly and reasonably when unacceptable behaviour or performance issue (sic) has been identified, and that all ethical and legal considerations are properly satisfied” is littered with considerable “vacant space” that would need to be filled so as to know what its implementation requires.  
372	Because, I am not persuaded that the Policy has contractual force, then Stewart was not compelled by its language to bring matters to the plaintiff’s attention in any particular form.  He may have elected to do so, but he was not compelled to do so. It may have been prudent for him to have done otherwise, but it would not have amounted to a breach of the Policy.  The defendant did not breach the plaintiff’s conduct by allowing Stewart’s conduct.
373	Despite being satisfied that the First Letter was poorly expressed, it cannot be reasonably said that in its terms it did not afford the plaintiff the opportunity to respond to the allegations and to meet them in the scheduled meeting, at which time, moreover, the plaintiff was afforded the opportunity to have a person present if she so elected.  I have noted that the defendant provided the plaintiff with the opportunity to have a support person in attendance.  Furthermore, up to the time of the meeting on 26 March 2012, the plaintiff said she was satisfied that she would be able to adequately explain the circumstances arising from the allegations that embraced both the incident with the patient and the two additional matters raised by Stewart in his letter.  
374	As I have earlier referred to, although the plaintiff was upset at the conclusion of the meeting on 26 March 2012, I am satisfied that it was  upset that on an objective view would be consistent with an employee taking a stance that their employer has not listened to them or paid regard to their explanations. I am not satisfied that the upset is evidence that, but for the breach constituted by the alleged failure to undertake the investigation or the conduct of the meeting or the sending of the letter in a “proper” manner, the plaintiff would not have suffered or experienced upset or disquiet. In other words, whether complied with as the plaintiff would contends was necessary under the Discipline Policy, the employer was still free to arrive at a conclusion rejecting the response to the allegations made by the employee or indeed to arrive at a flawed decision. Nothing in the Policy compels a different outcome although a different outcome might have arisen.
375	So, too, the attendant vice contended for on behalf of the plaintiff of the letters of May 2012 and 7 June 2012, as being contrary to the Discipline Procedures policy and, therefore, a breach of contract invites a similar analysis and conclusion by me.   
376	 Mr Worth submitted that the breach of the clauses of the policy is “manifest”.  Whilst it is readily enough evident that Stewart conducted himself in relation to the plaintiff on occasions in a manner inconsistent with or contrary to the Policy, that he did so, must ultimately be subordinate to whether the policy exhibits by its language an intention to create a contractual right or impose mutual contractual obligations on the plaintiff and the defendant? In my judgement, for the reasons I have endeavoured to explain, it does not. I am not satisfied that the Discipline Procedures policy was a contractual term of the plaintiff’s employment with the defendant and hence that the conduct identified amounted to a breach of the Disciplinary Procedures policy.
377	In arriving at my conclusion, I have had regard to the undisputed fact that McKenzie dealt with the plaintiff in the course of his meetings with her in June 2012 on the basis that the discipline policy did apply to the management of her employment and that The FWWL was issued to her contrary to the policy. That Policies identified processes for the employer to manage discipline or address bullying is one thing, but it is not the same as evidence of an intention for them to be contractual terms to be complied with such that on breach, a suit for damages for mental harm was contemplated. 
Implied term
378	The circumstances do not arise whereby in the alternative to express incorporation by reference, the Disciplinary Procedures Policy fulfils the requirements for the implication of a term. The Policies need not be implied in order for the effective operation of the plaintiff’s Contract of Employment. The benefits intended by the Policies are in any event otherwise accessible as a matter of legal recourse to the plaintiff.
  The Enterprise Agreement  
379	For most of the last century, the position relating to whether legislative instruments creating workplace rights (principally and historically derived from an award) would be incorporated as terms of the contract was unclear.  This issue came to a head in the late 1980s and early 1990s in a series of industrial disputes.  In the case of Gregory v Philip Morris Ltd (‘Gregory’), it was held that the term of an enterprise agreement was a term of the contract, giving the employee a right to contractual damages.
380	In addition, the plaintiff said she had no recollection of seeing the agreement.
381	In Byrne v Australian Airlines Ltd, however, the High Court overturned Gregory.  The High Court held that where the parties fail to set out the exact terms of a contract in writing, a court will only incorporate a term if it is necessary for the operation of the contract.  Given that industrial instruments operate independently, their incorporation is not “necessary”, and a court should not take that step.    
The Equal Opportunity, Harassment and Discrimination Policy Review – December 2006
382	The plaintiff pleaded at paragraph 5(f) of the Claim that “the Corporate Policy and Procedure on Equal Opportunity: Harassment and Discrimination dated December 2005 (review date December 2006)” was an express or implied term of the plaintiff’s Contract of Employment.  I am unable to accept that it was an express term of the plaintiff’s Contract of Employment and I adopt my reasoning in relation to the Disciplinary Procedures policy. However, it is appropriate that I address the arguments advance by Mr Worth in support of breach.
383	Mr Worth submitted that if it were accepted that Stewart targeted the plaintiff for less favourable treatment because of her status, including her age, and accrued entitlements, then such behaviour was in breach of the terms of the Policy incorporated into her Contract of Employment. If the Policy was contractual and Stewart acted on the basis alleged, that result would follow.
384	I have already made findings in which I have rejected the plaintiff’s claims that she was targeted by Stewart.  In any event, in my judgement, it would be contrary to the language of the Policy to regard it as providing a vehicle to allege discriminatory or harassing conduct by a manager in the conduct of work performance conduct unless such treatment was less favourable treatment based on one or other of her attributes to the treatment in like or similar circumstances afforded to some other employee but without the particular attribute.  As I have endeavoured to explain, and apart from anything else, I am not satisfied the plaintiff established such a claim on an evidentiary footing in any event.
Workplace Bullying Corporate Policy 
385	Was the Bullying Policy an express or implied term of the plaintiff’s contract of employment and, if so, was it breached? 
386	The plaintiff alleged that the defendant breached the Workplace Bullying Policy dated May 2010. 
387	On the basis of the reasoning earlier expressed and applicable to the Discipline Procedures policy, I am not satisfied that the Policy was incorporated into the plaintiff’s Contract of Employment. The expressed statement of POLICY is uncompromising in its general statement of corporate intent and that is that the defendant “will not tolerate bullying under any circumstances.” It then identifies a number of broadly expressed principles in the event of the same occurring or being witnessed. The balance of the document largely provides examples by way of guidance and assistance to a user of the Policy. It also includes reference to corporate governance Key Performance Indicators, a bibliography of external reference sources to legislation, and, as with the other Policies, is expressed as subject to reviews and consultation among a number of identified office holders in the organisation. It also contains passages by way of mandatory steps in the case of a complaint, investigation and outcomes. The document is not readily adaptable as comprising a contractual entitlement or obligation.
388	On the basis that the Policy is a contract term the plaintiff contended that she should have been provided immediately upon her complaint to McKenzie with a “Harassment and Bullying Report Form,” a document identified as part of “Manager’s action steps” and referred to in the Bullying Policy, but which according to Mr Worth was not provided until 6 July 2012 following the lodgement of her WorkCover claim.  I think the position is that the provision of a Bullying Report Form was not a contractual promise between the plaintiff and the defendant. The plaintiff gave no evidence about any such form or if it was requested it. According to Mr Worth, the plaintiff was apparently also offered mediation, a step consistent with the Bullying Policy, but which as Mr Worth put it, it was all too little too late in terms of her mental wellbeing. On the facts of the case and, in light of my findings, it could hardly have been proposed before at least 18 June 2012. 
389	The evidence did not identify what if anything the plaintiff did with the Bullying Form or if there was a request to progress a Bullying Complaint. There is no evidence that the Form was completed by the plaintiff and, despite the plaintiff going off work on certificates, there was no reason to suggest that it could not have been progressed. I simply do not know if it was.
390	At her meeting with McKenzie in his office on 18 June 2012, the plaintiff recalled telling McKenzie that she felt “like I was being targeted by this - Mr Stewart, and showed him the letters, which he [McKenzie] agreed were not the appropriate way to go about things”. This was the extent of her recollection of her discussion with McKenzie.  She said she did not know what he said, but as far as she was concerned, there was no “real outcome, he just agreed with me and then said something that wasn’t appropriate, for those letters to be sent to the way that they were sent to me”.  She said she asked for an apology from Stewart but never received one, although she did receive an apology in due course from McKenzie.  She thought he also might have apologised to her in the course of the meeting. Her recollection is consistent with McKenzie’s recording of an apology having been proffered on that date.
391	Following the meeting, the plaintiff said she felt as if matters had been left in abeyance in terms of what might occur further.  She said “every time I walked into the hospital, I was having a panic attack, because there was nothing.  I was waiting for Andrew McKenzie to maybe get Trent [Stewart] and myself into a meeting and trying to resolve this finally.  Nothing - nothing happened.  There was no mention of it, anything.” This would not appear to be entirely accurate because, as Mr Worth acknowledged, there was an offer of mediation that did not eventuate.
392	McKenzie’s letter to the plaintiff dated 9 July 2012 dated 3 days after this second meeting with the plaintiff on 6 July 2020 referred to the plaintiff having stated on 6 July that she was anxious, stressed and not sleeping since receipt of the letters from Stewart and as well because of an increased work load with a lack of support. As I have referred to earlier in my reasons, in cross-examination the plaintiff accepted the accuracy of the matters referred to in McKenzie’s letter of 9 July 2012. The letter recorded that the outcome from the meeting on 6 July was that the plaintiff was to submit a Workcover claim; to remain on sick leave until the claim was processed and she commenced annual leave and long service lave and that Ms Havlin would be in touch with the plaintiff the following week. 
393	The Policy states that an investigation of bullying “must commence within 2 working days of receipt of the complaint”. Each of the detailed steps contained in the Policy and contained under the heading “Investigation and mediation” were under McKenzie’s remit. It would not appear any step was taken within the period of the 2 days but, however, the Policy identifies that mediation should be the first consideration in resolving a bullying complaint and appropriate actions “based on findings” may include an apology, changes to work practices and disciplinary action. There is evidence enough in order for me to be satisfied that McKenzie engaged by way of a “bits and pieces” response from the suite of considerations and actions identified as available under the Policy, for example, the aforementioned and apparent offer of mediation, the apology, the withdrawal of the letters, and the advice to the plaintiff that Stewart had been counselled about the importance of compliance with procedures and policies. My ability to make these findings are not precluded because of the absence of evidence from McKenzie - they are identified from the plaintiff’s own evidence, the submissions of her counsel and the exhibits of correspondence received without objection.  
394	To the point advanced by Mr Worth that they occurred all too late in the piece, in light of my findings of when McKenzie became aware of the plaintiff’s complaints about Stewart, the consideration of the response must be confined to that period and thereafter. As Mr Worth submitted the plaintiff had already sustained her injury. 
395	The plaintiff has not established that if the defendant had undertaken the management and administration of the bullying complaint in accordance with the prescriptive measures contained in the Bullying Policy from within 2 days following 18 June 2012 that any such action would have avoided her injury or lessened any exacerbation of it.
396	On the question of McKenzie’s failure to give evidence Mr Worth submitted that I should draw an adverse inference. Mr Worth submitted that due to his absence and Ms Tonkin’s, about whom I have not drawn an adverse inference, I should be satisfied in drawing inferences unfavourable to the defendant and more readily accept the evidence of the plaintiff about the discussion that occurred on 18 June and the events that followed. The fact of the matter is, that I have accepted in the very large part the uncontradicted evidence of the plaintiff’s account of her discussions with McKenzie. In large part, her evidence does not stand in conflict in any meaningful way with the documentary evidence of McKenzie’s actions.
Dr Penelope Webster, expert witness evidence
397	Because of my findings it becomes unnecessary to address the evidence given by Dr Webster, who is a consultant in complaints and organisational conflict.  She prepared two expert reports dated 18 August 2019 and 10 January 2020. However, if my findings had been otherwise, it is worth noting that I would not have been much assisted by Dr Webster’s evidence in the resolution of the matters in conflict.  
398	In preparation for the provision of her expert opinion, Dr Webster was provided with a letter of instructions from the plaintiff’s solicitors, together with a copy of the plaintiff’s affidavit sworn 19 September 2017 in support of her serious injury application.
399	Dr Webster’s expert evidence was directed at identifying what a reasonable employers’ management of the plaintiff’s circumstances should have involved in light of the contents of the Disciplinary Procedures policy.  
400	Dr Webster noted that Step 1 of the Disciplinary Procedures policy “appears to be drafted as an informal non recorded first step”.  Dr Webster wrote that:
“Counselling does not require that the Appropriate Person undertake any form of investigation to ascertain the veracity of the claims about the employees’ performance or conduct prior to being counselled.  This appears to be in contradiction with the stated right under Section 1 Due Process.  Step 1 appears to have been drafted as an informal, non-recorded first step that is technically not part of the Disciplinary Process.”
401	Dr Webster also referred to Clause 12 of the Enterprise Agreement:
“Where the employer has concerns in relation to the employee’s performance, the management representative shall notify the employee of the concern and reasons for it.  And where appropriate, the matter will be dealt with by verbal counselling of the employee is the first option.”
402	Dr Webster wrote that Stewart’s First Letter “does not explicitly state what he’s concerned about.”
403	Dr Webster said that Step 1 is engaged in “an informal process prior to finding out the facts and doing the investigation”.  She wrote:
“Based on the initial complaint and the information from Christine Dobson, it would have been reasonable to have a discussion with Linda Lloyd to hear her side of the story without putting anything in writing.”  
404	However, in cross-examination by Ms Ryan of junior counsel for the defendant, Dr Webster agreed that at times having a discussion prior to putting matters in writing itself can carry risks, and that the appropriate course will depend on the circumstances including matters as diverse as, where the conversation takes place, the manner in which it is undertaken and to the legislative constraint that management action is reasonable and carried out in a reasonable way.
405	In regard to the patient complaint about the plaintiff of January 2012, Dr Webster was critical that the patient had not provided any examples of the plaintiff’s actual behaviour.  Dr Webster did not think it was logical that just because the plaintiff was able to deny the patient allegation in the broad, that no need arose to provide her with examples of the behaviour that underpinned the description of her being “unhelpful, rude and condescending”.  Dr Webster said that –
“From a social science background, what we would be saying is you would to be having an open and sympathetic conversation with the patient to elicit as much information from them in a way that is as neutral as possible, so you would try and get the patient to tell them your account-, or what we would describe as-it’s their narrative from their perspective.  Bearing in mind that everybody has a different perspective of what occurs.”
406	As to the March 2012 meeting between the plaintiff, Stewart and Hennessey, Dr Webster was critical.  It became apparent that Dr Webster ‘s understanding was that the plaintiff was given no forewarning that performance matters would be raised at the meeting. Her understanding was that the performance management matters concerning sick leave and leave breaks were sprung on the plaintiff at the meeting.  That was factually inaccurate. Dr Webster had also been advised in the letter of instructions furnished to her for the preparation of her report by the plaintiff’s solicitors that the plaintiff was not given an opportunity to explain herself at the meeting and that she was not listened to appropriately.  That was also incorrect. Dr Webster was also instructed that the plaintiff was in tears and distressed about being ambushed with additional issues that were not raised in the letter of 1 February 2012.  Dr Webster was not aware that the plaintiff had been alerted by Stewart in his correspondence to these performance management issues or that the plaintiff responded to them in the meeting.  She said she was unaware of it.
407	When Dr Webster was directed to the plaintiff’s evidence that she had been told by Stewart to be aware of not taking any more than a 15-minute break, Dr Webster agreed that this would constitute a course of action although, “a pretty limited course of action”.
408	 Dr Webster said that in a busy complex reception area there may be circumstances where the plaintiff would need to take longer or shorter breaks and that a sensible manager would talk about different expectations related to the rules that applied.  She thought that a simple “don’t do it approach” would fail to take into account the complexities of a working environment.  I note at this point, my earlier evidence that I accept Stewart encouraged the plaintiff to approach him should she not receive the necessary assistance in terms of how busy she could find herself. 
409	Dr Webster said that she had been asked whether the first meeting was conducted in a fair, appropriate and safe fashion and that for most people –
“… allegations and admits, that can be quite frightening and quite threatening.  So it puts it into the realm of the legal process rather than an engagement with an employee about behaviour that is below the accepted standard and how the manager and the employee are going to work to get the behaviour back to the accepted standard.”
410	Dr Webster wrote in her report, at 7.6: 
“A meeting conducted along counselling lines would not be described as distressing, causing upset or reducing a person to tears.  A counselling meeting has as its aim at remedying behaviours and therefore would leave a person feeling supported and hopeful.” 
411	Dr Webster said: 
“What I am saying is that a counselling session, even if it does cause the person to become distressed or upset, or reduced to tears, would not leave the person in that situation because the idea of a counselling situation in a workplace situation where you are dealing with inappropriate behaviour is to support the person to remedy the behaviour.  The person is not going to be able to remedy the behaviour if they are distressed and anxious.  They are more likely to be able to remedy their behaviour if they are feeling supported, understood, and given a positive way forward-so they are given some hope that they will be able to change their behaviour, and they are not taking all the blame for what occurred in a situation, because workplaces are very complex and people’s lives are complex, and certainly the research shows us that in situations of inappropriate behaviour whether you are reviewing it from the perspective of the person who is the target or the person who is the perpetrator, the context around that person is particularly important.”
412	Dr Webster also addressed the May 2012 incident.  Dr Webster could not explain why she had written in the report that the patient had lied.
413	Dr Webster said that she had been told that the plaintiff’s evidence had been that McKenzie’s tone at the meeting on 18 June 2012 was apologetic and conciliatory and Dr Webster’s understanding was that McKenzie had apologised for the provision of the letters from Stewart.
414	I add this additional comment concerning Dr Webster’s evidence. It cannot be overlooked that considered necessity for the provision of expert evidence to explain how the various steps in Policies should be applied in a generic sense and how their application may be open to interpretation in a given case in a workplace, is a further indication that the policies are aspirational in nature and to be used as a guide but not as prescriptive contractual obligations. 
Evidence of Thomas Lloyd 
415	I have earlier in my reasons related Mr Lloyd’s evidence of his conversation with his wife. He has been married to the plaintiff for approximately forty years.  He said that his wife told him she received a letter from Stewart when she arrived home from work and that she explained that it was a letter of rep remand or a first warning.  He said she told him the letter was “just hand-delivered” by Stewart who simply said to her: ‘“Here is a letter for you” and tossed it to her at the reception desk.”
416	Mr Lloyd said he attended one meeting with his wife as her support at the MC at which were present McKenzie and either Christine Dobson or her replacement.  He recalled McKenzie making an apology to the plaintiff in reference to the letters that were sent to her and he thought McKenzie explained that he was apologising because “they were handled incorrectly.  As he is the general manager, he felt that the letters should have gone through him first, which he didn’t know about because he never signed the letters, as far as I know.”
417	Mr Lloyd said that between February to June 2012, his wife’s condition was dreadful.  She was dry wrenching on any day she had to go to work.  He said she was taking sleeping tablets during this period and it was taking her a long time to get to sleep.  He said that by comparison and prior to 2012, her personality was fine and she would potter in the garden and take the dog for a walk and she was quite chirpy.  He said she had belonged to a book club and a craft club, knitting, and would catch up with mums from other schools and enjoyed going out to someone else’s house but that “after all these issues started … she just didn’t feel like socialising with anybody”.
The Plaintiff’s mental injury
418	At the very outset of these reasons for decision, I observed that it was not a matter of contest between the plaintiff and the defendant that the plaintiff suffers from a psychological injury. The medicine was substantially all one way and that it is the plaintiff has suffered stress in her work with the MC.  Thus factual causation was not contested. The reports relied upon by the plaintiff in relation to diagnosis are broadly consistent.  The attribution of the cause of the plaintiff’s mental condition is understandably dependent on the examiners accepting the plaintiff’s account of history of her dealings at work.  However, there is unanimity of opinion that the mental harm was occasioned to the plaintiff in the workplace with the defendant and ultimately as result of her reaction to the manner in which she dealt with in the period between January and June 2012.
Remoteness
419	The parties addressed the question of remoteness of damage in the event I was satisfied the Policies were contract terms and that had been breaches of them. Because of my findings it is not necessary to address the question. Had it been necessary to do so, I would not have been satisfied that the damage relied on as flowing from the breaches should be regarded as being within the reasonable contemplation of the parties at the time the contract, that is to say the various Policies were entered into. 
420	The degree of probability of the occurrence of the loss or damage claimed by way of breach of contract has been variously described in the authorities. In Hadley v Baxendale the following was said:
“Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it.”
421	Subsequently in The Commonwealth v Aman Aviation Pty Ltd (‘Aman Aviation’) it was recognised that the two limbs referred to Hadley v Baxendale, and their application may depend on the extent of relevant knowledge possessed by a defendant in a particular case.
422	In Nikolich the damage for psychiatric injury arising from breach of his contract of employment was not considered too remote. That, however, will not mean that in every such case, a like result must follow.
423	On the information available to the defendant when the contract with the plaintiff was made, and for present purposes that will be the date the relevant policies were each adopted, would the defendant have realised that it was sufficiently likely that the plaintiff would suffer psychological injury as a result of the breaches of each of the policies relied on, such that it would be appropriate to determine that the plaintiff’s losses flowed naturally from such breach or breaches or was of a kind of damage that should have been within the defendant’s contemplation?
424	The plaintiff had worked for the defendant for a significant number of years, over which she had managed her employment including other complaints from patients and separate to the issues that have occupied this proceeding. She navigated what she agreed could be a difficult work environment without putting the defendant on alert to any vulnerability such as to indicate that she was at risk of psychiatric injury that might flow naturally for any breaches of policy. 
425	I am not satisfied that it should be thought to have been in the reasonable contemplation of the defendant that the articulated breaches of the Policies relied upon by the plaintiff was sufficiently likely to result in psychological injury to her.
426	Whilst I accept that the purpose underpinning a bullying policy, unlike a disciplinary policy, is directed at the provision of a workplace free from harassment and intimidation, and therefore, has a more identifiable connection with the emotional and mental well-being of an employee, the matter nonetheless reverts to whether the identifiable breaches would, based on the degree of relevant knowledge possessed by the defendant in this case, result in it being properly concluded that psychological damage would flow from such breach or breaches. 
427	I would not have been satisfied that the occurrence of the specific breaches relied upon by the plaintiff either under the Discipline Policy or the Bullying Policy or the Equal Opportunity Policy or by non-compliance with the Enterprise Agreement, should have put the defendant on alert to risk of the plaintiff’s psychiatric injury. It cannot be supposed that the defendant should have had it within its reasonable contemplation that because the investigations were left to Stewart that the plaintiff would likely have suffered her mental injury. As to the Bullying Policy, I have already referred to the fact that circumstances identifying a breach of its terms is questionable other than by what would appear to be a failure by McKenzie to provide the plaintiff with a Bullying Form immediately on 18 June 2012 and a failure to engage any of the processes and procedures within a period of the first 2 days after 18 June.  I would not in any event have been satisfied that the defendant should have had within its contemplation that such breaches if they occurred was sufficiently likely to result in mental harm to the plaintiff.
428	Bearing in mind that the plaintiff bears the onus of proving that her claimed losses are not too remote in accordance with Aman Aviation, I would not have been satisfied she discharged her onus that such loss and damage was not too remote. 
 Conclusion
429	There is no doubt in my mind that the plaintiff was treated poorly by Stewart and she has suffered by way of the development of a significant mental injury. The effects remain with her. However, I have been unable to accept and find that Stewart’s conduct amounted to bullying. 
430	I have accepted that Stewart’s conduct that gave rise to the plaintiff’s injury arose in the context of work related matters. I have accepted Stewart had authority to investigate the matters. That authority was approved of the General Manager. To the submission made by Mr Worth that I should draw an adverse inference because of the failure of the defendant to adduce evidence from Ms Dobson, the fact is that any evidence that might have addressed the existence of a prior understanding or arrangement about leave breaks, would not have precluded Stewart from an entitlement to  address any complaint about it or to direct the plaintiff to be conscious about it. The fact that her evidence might have addressed the hierarchy of command was otherwise disposed of by the General Manager’s approval for Stewart to undertake disciplinary steps in regard to the plaintiff. I am not persuaded an adverse inference is called for.
431	I have accepted that Stewart went about the investigations in a manner that in particular aspects already identified in my reasons, was attended with a substantial lack of fairness. 
432	I have accepted, however, that the law precludes the defendant from liability for the mental injury caused to the plaintiff as a result of the conduct of such matters.
433	If I am wrong as a matter of law, then I would not be satisfied the plaintiff proved that the defendant was under a duty of care to avoid the risk of mental injury due to the lack of evident signs of distress until June 2020.
434	I am satisfied that thereafter and from 18 June 2012, the defendant acted reasonably after becoming aware of the plaintiff’s expressed distress in her previous dealings with Stewart. 
435	I am not satisfied that the Policies or the enterprise agreement were express terms of the plaintiff’s contract of employment with the defendant.
436	I am not satisfied the policies or the enterprise agreement terms were implied terms of the contract of employment at law. 
437	The plaintiff’s claim is dismissed. I will hear the parties on the form of final order including costs.