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Campbell v Henwood (No 2) QIRC 125
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Campbell, Michael v Henwood and Racing Queensland Board (No 2)  QIRC 125
Racing Queensland Board trading as Racing Queensland
Referral of complaint
6 September 2019
7 February 2019
21 May 2019
27 May 2019
28 May 2019
2 July 2019
Industrial Commissioner Black
ANTI–DISCRIMINATION LAW – Direct discrimination – protected attribute of impairment – psychological illness claimed – whether applicant impaired at the relevant time – whether applicant less favourably treated.
Anti Discrimination Act 1991 ss 7, 10, 15, 204
Mr M Campbell, the applicant, in person.
Mr PA Hardman, of KL Gates, for the respondents
Reasons for Decision
- The applicant commenced employment with Racing Queensland in the position of Internal Auditor on 11 March 2014. He was subsequently appointed to the position of Head of Audit, Risk and Compliance on the 1st of January 2016, a position created after the role of Chief Financial Officer was abolished in December 2015. He held the role of Head of Audit, Risk and Compliance until his employment with Racing Queensland ended on 9 March 2017.
- In the applicant's capacity of Head of Audit, Risk and Compliance, he reported directly to the Chief Executive Officer. This changed after Mr Forbes was appointed as the Chief Executive Officer on 22 August 2016 and some restructuring of the organisation chart was undertaken. The effect of the restructure was that from 12 December 2016, the applicant reported to the first respondent, who had been appointed as the Chief Financial Officer.
- The applicant took two weeks annual leave in January 2017 before returning to work on 17 January 2017. On 23 January 2017 the applicant informed the first respondent that, on doctor's advice, he was taking four weeks sick leave. He subsequently returned to work on 28 February 2017.
- On Wednesday 1 March 2017, the applicant proposed that his employment be ended on the basis that his role be made redundant. However, the respondents declined to make the role redundant.
- On Sunday 5 March 2017, the applicant requested a meeting with the Chief Executive Officer, Mr Forbes. The meeting took place the following day. After consideration, the respondents decided to make an offer to the applicant and prepared a deed of release incorporating the offer.
- The deed was presented to the applicant on 7 March 2017 and was executed on 8 March 2017. The applicant's employment with the second respondent ended on 9 March 2017.
- The scheme of the Anti-Discrimination Act 1991 (the Act) is one wherein section 7 of the Act prohibits discrimination on the basis of various defined "attributes" including the attribute, in s 7(h) of the Act, of "impairment". Section 8 of the Act refers to the meaning of discrimination on the basis of an attribute, while s 9 prohibits "direct" discrimination. Section 15 deals with discrimination in the area of work. Section 15(c) provides that a person must not discriminate in dismissing a worker, while s 15(f) provides that a person must not discriminate by treating a worker unfavourably in any way in connection with work.
- "Impairment" is relevantly defined in a schedule to the Act as "a condition, illness or disease that impairs a person’s thought processes, perception of reality, emotions or judgment or that results in disturbed behaviour".
- Section 10 of the Act defines direct discrimination in the following terms:
10 Meaning of direct discrimination
- Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.
- Section 10(4) provides that in the event of the less favourable treatment being attributed to more than one reason, the substantial reason for the treatment is to be identified:
- If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
- The effect of the legislative scheme is that, for the applicant to establish direct discrimination, he needs to show that he was treated less favourably than another person (without the attribute of impairment) in circumstances that are the same or are not materially different.
- The effect of s 204 of the Act is that it is for the applicant to prove on the balance of probabilities that the respondent contravened the Act.
- The applicant maintained that he was suffering from an impairment, that the respondents knew that he was suffering an impairment, and that, because he was impaired, the respondents singled him out for less favourable treatment as described below:
- The first respondent, upon becoming aware of his impairment, decided to embark on a course of conduct to effect his resignation by commencing, and then repeatedly suggesting, encouraging and pressuring him to resign;
- When a deed of release was presented to him, it was presented on a non-negotiable basis and he was not given any input into the settlement of the terms of the deed;
- The respondents knew that, because of his impairment, he lacked the capacity to understand the terms included in the deed and knew his diminished capacity was likely to result in him accepting the deed;
- The deed was not accompanied by a covering letter explaining the terms of the deed or the basis upon which the deed had been drawn up;
- The respondents, knowing that he suffered an impairment, chose to offer materially worse terms than those expected to be offered to a senior employee. The terms provided could be described as meagre and insulting and did not meet expected standards within the general business community;
- The respondents knowing that he suffered an impairment, expressed the "settlement" provisions of the deed in confusing and misleading terms in that payments which were not part of the settlement but rather contractual or statutory entitlements, were included in the settlement clause;
- The respondents denied him any reasonable opportunity to seek and obtain legal advice in relation to the contents of the deed.
Matters for determination
- In order to succeed the applicant must establish:
- That he had, at the relevant times, a condition or an illness that impaired his thought processes, perception of reality, emotions or judgment, or that resulted in disturbed behaviour;
- That the respondents knew that he was suffering an "impairment" as defined;
- That there is evidence of less favourable treatment;
- That he was treated less favourably than a person without the impairment would have been treated.
- In opening his evidence, the applicant said (T1-7) that when he became sick and impaired the first respondent saw an opportunity to force him out of employment by pressuring him to resign:
I was a hard-working and a high-performing employee, who became sick and impaired with a protected attribute as a result of stress-related illness. I allege that upon becoming aware of my having an impairment, Ms Henwood made the decision to embark on a course of discriminatory conduct, to have me resign by commencing and then repeatedly suggesting, encouraging and pressuring me to resign.
- Important issues of timing were not addressed in this evidence. The applicant did not say at what point in time he reached a stage of impairment as defined in the Act; he did not say when the first respondent became aware of any impairment; and he did not explain when he became impaired or when his impairment recurred, after he was medically cleared to return to work on 28 February 2017. Additionally, he did not clarify when it was that he thought that he was being pressured into resigning. Did he form this view after the first respondent spoke to him in December 2016, or was he alleging that the pressure became evident on a later occasion?
- On the applicant's version of events, the suggestion of a resignation had been raised with him on four occasions. Firstly, in the telephone conversation between himself and the first respondent on 23 January 2017; secondly, when Ms Urselmann raised the issue on behalf of the first respondent in a telephone conversation on 2 February 2017; thirdly during a discussion he had with the first respondent on 1 March 2017; and finally in a discussion with the first respondent on 3 March 2017.
- It was not in dispute that discussions about a resignation took place. On the first respondent's evidence, the issue was first raised in a discussion in December 2016 and it was also canvassed during a meeting on 3 March 2017. She said it was possible that the issue was also raised in a discussion on 1 March 2017.
- While the applicant questioned the first respondent's motivation in introducing the subject of a resignation, it is relevant to consider the context within which the issue was raised. In this regard, the evidence supports a conclusion that the option of a resignation was never raised in isolation of other matters, and that these other matters included uncertainty associated with the ongoing nature of the applicant's role, and the applicant's health and well-being.
- The uncertainty about the applicant's ongoing employment first emerged in a discussion between himself and Mr Forbes which took place before the first respondent had commenced employment with Racing Queensland. In this discussion (T2-85), Mr Forbes told the applicant that he intended to outsource the internal audit component of the applicant's role.
- On the first respondent's evidence, the outsourcing issue was raised during a discussion that she had with the applicant before he went on sick leave. It was in the context of this discussion that an option that the applicant might resign was canvassed. However, the first respondent denied that she was pressuring the applicant to resign.
- It was the first respondent's evidence that the option of a resignation first arose when a discussion with the applicant turned to a direction from the Audit and Risk Committee that the applicant was to "look at outsourcing the internal audit functions" (T2-31):
It is alleged that at various times in conversations with the complainant, you made reference to him, or a possibility, or option of him, resigning. What do you have to say to that?---Yes. That came up in a conversation when there was another task that the complainant had been asked to do by the Audit and Risk Committee, which was to look at outsourcing the internal audit functions of Racing Queensland, and the club compliance and the risk. And I was – I expressed my surprise that the complainant was in charge of that because, potentially, he was outsourcing his own job. And it was at that point we discussed various options in a very, you know, casual sort of a conversation, one afternoon, about what that might be. And how that, in fact, may not be outsourcing his role. The role may change, but somebody – but would still be needed to manage that external contractor. And I expressed the view that I thought it was extremely unlikely that the whole of the role would be outsourced. But, in that context, we also discussed that. And it was then that the complainant first raised the fact that, you know, he may not have been entirely happy with his role.
- Contemporaneous evidence in support of the first respondent's version was provided by a file note that she had written on 5 March 2017 and which is in the evidence as Exhibit 20. The file note relevantly included the following:
Prior to his going on leave he was working on a tender to outsource or co-source Internal Audit, aspects of Club Compliance and Risk.
We had discussed the tender at some length back in December and January and noted then that the options were open but noted the role would be different depending on the outcome of the tender but that there were parts that could not be outsourced.
We had discussed back then his core skills, as it was evident he was not enjoying his work, and I had advised I would work with him should he decide he needed to seek other employment and be supportive in that venture. He acknowledged many areas were outside his knowledge (eg Risk management) and seemed to appreciate that offer.
- The veracity of the first respondent's evidence about the tender was not challenged by the applicant and he acknowledged that he had been working on this tender when giving evidence about work that he was performing after his return to work on 28 February 2017. In this evidence (T1-40), the applicant said that having resumed work on a tender that would potentially outsource a large portion of his role, he initiated a discussion with the first respondent and sought some clarity on the future of his position and role at Racing Queensland.
- I accept the first respondent's evidence that a discussion about the tender took place in December 2016 and that during this discussion the option of the applicant considering employment opportunities outside of Racing Queensland was canvassed.
- In my view, it is more probable than not, that the issue of resignation when first raised was directly linked to the uncertainty about the ongoing nature of the applicant's role. It is also likely that any doubt held by the applicant about the continuing nature of his employment may have been emphasised by other factors including the stressful nature of the work environment towards the end of 2016, the state of his relationship with the first respondent, and the impact on him of long hours of work.
23 January 2017
- The applicant said that after consulting his general practitioner on 23 January 2017, he phoned the first respondent and informed her that he needed to take four weeks leave on doctor's advice.
- The applicant said that he made a diary note of his conversation with the first respondent (Exhibit 12). The diary note, which is reproduced hereunder, disclosed that resignation was raised in a context where the first respondent had said inter alia that she would only contact the applicant in "extreme necessity"; asked the applicant to let her know if there was anything that Racing Queensland could do; told the applicant that he could return to work on the basis of working "a few days a week"; or if he wanted to, he could resign:
Called CFO, advised had been to doctor and had a medical certificate to be off work for four weeks.
What is it – stress? Advised no detail on certificate as doctor said does not have to be. But yes, unrelenting pressure, enormous hours, expectations at RQ have impacted. Thought it may be stress – you were stressed before Christmas. Shame I thought we could work through this and get on top of it (j). If there is anything RQ can do please let us know? I just need time to sort out my head and health – feel like I have been operating in a haze. Will only contact me on extreme necessity – let know if anything RQ can do. If I want to return a few days a week. Or if I want to resign let her know. WTF. Will send medical cert to HE and cc Justine. J will advise Eliot.
- The first respondent said that during the 23 January 2017 phone call, the applicant did not tell her why he needed to take sick leave. She said that all she recalled saying was that the applicant needed to decide what it was that was in his best interests, having regard to his health and his family.
- While the first respondent denied raising the issue, it is questionable whether the mention of an option of resignation in the context described in the diary note, and having regard to the earlier discussion in December 2016, was in any way inappropriate. It was not a leading proposition nor was it an exclusive proposition. Rather, it was an option that was included with a range of other possibilities which pragmatically reflected on the predicament of an employee who was concerned about the restructure of his job, was experiencing a stressful work environment and, in his own words, had been working "enormous hours" and working under "unrelenting pressure".
2 February 2017
- The applicant said that the Human Resources Manager, Ms Urselmann, telephoned him on Thursday 2 February 2017 and asked him if he had made a decision. The applicant maintained in his evidence that he took it that he was being asked if he had made a decision about whether to resign (T1-35):
All right. So that’s exhibit 11 and 12. You keep going, Mr Campbell?---On the 2nd of February 2017, pretty early on in my sick leave, I had a phone call from the human resource manager, Ms Erica Urselmann. She stated that Ms Henwood had instructed her to call me and ask whether I had made a decision yet. I queried what she was seeking a decision on and Ms Urselmann replied, "I’m not really sure".
- After speaking with the applicant, Ms Urselmann emailed (Exhibit 13) the first respondent and Ms Lorena, and informed them that the applicant had not resolved his plan for the future:
I have just spoken to Michael and he does not know what his future plan is yet. He has an appointment with his Doctor before he is due to return to work so I shall contact him again that week to get an update.
- Ms Urselmann's choice of words is consistent with the applicant's evidence that the purpose of her call to the applicant was to ascertain if he had made a decision. The choice of words is also consistent with the record of conversation between the applicant and the first respondent on 23 January 2017 (Exhibit 12) in that the applicant was being asked in effect if he had given consideration to the matters raised on 23 January 2017 including the offer of assistance, the offer to return on a part time basis, and the option of a resignation.
- The first respondent denied that the purpose of the phone call was to find out if the applicant had decided to resign. She said that she asked Ms Urselmann to contact the applicant to, in essence, check on his welfare (T2-53):
Okay. I put it to you that you instructed Erica Urselmann to call me and find out what my future plan was or whether I had my – in fact, it was, "had you made a decision yet"?---No, I asked Ms Urselmann to contact you and ask how you were going and it was common practice for employees to be contacted to provide support for them during periods of illness. I was concerned because I believed you may have been living at home alone.
- While it is possible that Ms Urselmann's phone call may have been intended to elicit a response from the applicant on the subject of a resignation, it could equally have been intended as a broader enquiry about the applicant's intentions having regard to the range of matters introduced during the discussion on 23 January 2017.
1 March 2017
- After his time off on sick leave, the applicant returned to work on 28 February 2017. The next day (Wednesday 1 March 2017), the applicant asked the first respondent about the status of his position. In a diary note made on 3 March 2017 (Exhibit 17), the applicant said that he asked about his predicament given the probability that the internal audit function would be outsourced.
- The applicant said that the first respondent was non-committal in her response and raised the option of resignation. When he said that he did not want to resign, he said the first respondent asked him to consider his position overnight.
- The applicant's evidence in the proceedings was consistent with his diary note. He said that he initiated the discussion with the first respondent for the purpose of getting clarity around the future of his position and role within Racing Queensland (T1-40). He suggested that he was prompted to raise the enquiry because, on his return to work from sick leave, he had resumed his work on the outsourcing of a "large portion" of his role.
3 March 2017
- On 2 March 2017, following his discussion with the first respondent the previous day, the applicant asked the first respondent that he be made redundant because of his health and the impending outsourcing of his position. It was on the following day, when the first respondent told the applicant that he would not be offered a redundancy, that she raised the issue of a resignation. She had included a record of her discussion in her 5 March 2017 file note (Exhibit 20) which relevantly stated:
Re-emphasised his health was his most important aspect and he needed to ensure he focused on himself. I advised him Resigning was an option if he decided that was best for him and I would understand if he made that decision. I then asked him when his next medical appointment was ….
- The applicant's evidence was consistent with this and was supported by the file note that he had prepared on 3 March 2017 (Exhibit 17). The effect of the file note was that after telling the applicant on 3 March 2017 why his position would not be made redundant, the first respondent said that he could resign if he wanted to.
- I accept that, in suggesting a resignation when the applicant's request for a redundancy had been rejected, the first respondent could have been steering the applicant toward a direction in which it was unlikely that his position would survive and that it was in the best interests of the applicant that he exercise his mind on the prospect that he would not be employed for much longer at Racing Queensland. To this extent, the applicant may have been encouraging the applicant to consider resignation, but the evidence falls short of establishing that the applicant was pressured or coerced into resigning.
- Further, the first respondent never raised the option of a resignation in isolation of other factors, or as a remedy for inferior performance. The issue was always raised in conjunction with a discussion about the applicant's health and the probability that the applicant's position would be outsourced.
- Instead of attending for work on Monday 23 January 2017, the applicant consulted his general practitioner, Dr Issapour, and was given a medical certificate certifying him unfit for work for a period of four weeks. The period of absence was subsequently extended by one week on 20 February 2017. The applicant said that he went to the doctor because he did not feel up to going to work and he said that he was feeling really upset. Dr Issapour said that the applicant presented with a trembling voice and in a tearful state.
- In a report dated 4 February 2019 (Exhibit 30), Dr Issapour said that the applicant first attended on him on 23 January 2017 because of severe stress at work. When the applicant attended on Dr Issapour he presented Dr Issapour with a letter from his psychologist which supported a decision that the applicant should take six weeks leave from work. Dr Issapour noted in his report that he agreed in principle with the psychologist's recommendation and gave the applicant a four week medical certificate with a view to extending the period if necessary.
- After the first consultation, Dr Issapour treated the applicant on 31 January 2017, 9 February 2017, 16 February 2017, 20 February 2017 and 24 February 2017 which was the last consultation before the applicant returned to work on 28 February 2017.
- Evidence in the proceedings was given by Dr Issapour, the applicant's treating psychiatrist, Dr Alponsu, and the applicant's treating psychologist, Ms Carlile. A report prepared by Ms Carlile on 4 February 2019 is in the evidence as Exhibit 31, while a report prepared by Dr Alponsu on 9 April 2019 is the evidence as Exhibit 37. The applicant had been referred by his general practitioner to Ms Carlile on 14 July 2017. The applicant did not consult Dr Alponsu until 25 September 2017.
- It is not known when the applicant first sought treatment after the ending of his employment with Racing Queensland on 9 March 2017. On Dr Alponsu's evidence, the applicant was treated by a psychiatrist, Dr Shameli on 22 June 2017, and it is known that he first attended on Ms Carlile on 17 July 2017.
- The applicant's psychologist at the time of the relevant events in January and February 2017 did not give evidence, but the letter that was provided to Dr Issapour was read into the record (T2-7):
I am the treating clinical psychologist for Mr Campbell. He has attended regularly over recent weeks. In my opinion, he has symptoms of chronic, severe, traumatic stress (indistinct) his long-term family and workplace circumstances. Mr Campbell (indistinct) has requested that I offer my support for a leave request. He reported that he would benefit from (indistinct) leave for rest and recuperation. For the sake of his mental health and general wellbeing, I have (indistinct) support his request and recommend that he be allowed to take 6 weeks.
- Ms Carlile's report is evidence that, on presentation on 17 July 2017, the applicant was suffering from severe levels of anxiety and depression. She diagnosed a major depressive disorder and generalised anxiety disorder with panic attacks.
- Ms Carlile regularly treated the applicant throughout 2017 and 2018 and continued to treat him in 2019. On her evidence, she would have treated the applicant on more than twenty occasions since the first attendance. She would have been familiar, over time, with the applicant's litigation alleging discrimination by the respondents, and she referred to the litigation in her February 2019 report.
- On the history provided to Ms Carlile, she formed the view that the predominant stressor for the applicant during the relevant period was bullying by the first respondent and the pressure caused by constant, repetitive suggestions that the applicant resign (T2-20):
You do have to answer the questions. You can understand from the Commission’s point of view that we accept that Mr Campbell will have told you that his condition was attributable, at least in part, to bullying at work. So it’s not the generalisations that we’re interested in. For the moment, it’s the line of inquiry that goes to what specific event did Mr Campbell report to you that led you to believe that he had been bullied at work?---I guess the predominant – if I’m thinking about specific terminology, which I did refer to in the report, was that he felt that his supervisor was repetitively suggesting that he resign. That he felt a lot of pressure and then when, given the – yes, when – in those interactions that – yes, he felt very much under pressure that there was this constant repetitive suggestion of resignation and – and not a lot of ability to, I guess, digest that or to – to look at, you know, what are the other options here or – yes, that it’s an overriding feeling of pressure and that – in which she was talking to him and in the terminology she was using.
- Ms Carlile's report, while written in February 2019, included a clinical opinion to the effect that the applicant would have been suffering from symptoms of anxiety in early March 2017, and that these symptoms would have impaired the applicant's judgment in relation to his decisions to end his employment and to sign a deed of release.
- Dr Alponsu first treated the applicant on 25 September 2017. He remained the applicant's treating psychiatrist at the time of the hearing. On presentation on 25 September 2017, Dr Alponsu diagnosed the applicant with a major depressive episode. In his evidence, Dr Alponsu said that Dr Shameli had diagnosed the applicant with depression in June 2017 and that when he took over the applicant's care, the applicant still had symptoms and signs of depression.
- In preparing his report, Dr Alponsu said that he gathered information directly from the applicant and the applicant's wife, from the notes of Dr Shameli, and from a referral written by Dr Sullivan who was treating the applicant's daughter and who had referred the applicant to Dr Shameli. Neither Dr Shameli, Dr Sullivan, nor the applicant's wife gave evidence in the proceedings and Dr Alponsu did not identify what parts of his report relied on their contributions. I proceed on the basis that opinions included in Dr Alponsu's report and evidence relied predominantly on a history provided by the applicant.
- In his report, Dr Alponsu said that the applicant reported that he was working well at Racing Queensland until there was an organisational structural change in 2016. The change resulted in a new executive team taking over and a change in the applicant's reporting line. Dr Alponsu said that the applicant reported that "he was feeling burnt out by December 2016". Dr Alponsu opined in his report that "there was clear evidence" that the applicant's condition was precipitated by an "adverse workplace situation".
- The effect of Dr Alponsu's evidence was that, on the history provided, the applicant faced a number of stressors toward the end of 2016 including, a requirement to perform a lot of work and to work extra hours, the need to complete certain reports before the end of the year, and a difficult working relationship with the first respondent (T3-4):
… So from the information you had given me, and also the information I gathered from interviewing your wife with your consent, you joined Racing Queensland in 2014, job was going well up until late 2016 when there was – structural changes happened to the organisation with the new management taking over – the – the management. And towards the end of 2016, the job became very stressful, and there were certain reports to be completed before the end of the year, and it’s the holiday season, end of December, and lot of – you had to do a lot of work – do extra hours in – for the completion of the report, and you felt very stressful. And you also told me you had difficult – difficult working relationship with your line manager, Ms Henwood, and then there – you told me about, you know, the disagreement and the discussions – your difficult discussions you had with your line manager. And eventually you became more and more stressed out, and you took a – medical leave on recommendations of your GP.
- Dr Alponsu had also identified non-work stressors in his report. He noted that the applicant had separated from his wife and family during his period of sick leave in January and February 2017, and that the applicant had been diagnosed with depression or anxiety about 4-5 years prior to the events of December 2016 and January 2017, although he said that the depressive condition had stabilised before the relevant events in 2016.
- After the applicant left Dr Issapour's clinic on 23 January 2013, he phoned the first respondent and informed her that he was proceeding on four weeks leave "on doctor's advice". In the applicant's diary note (Exhibit 12), he wrote that he had a medical certificate approving a four week absence from work and said in effect that the nature of the illness had not been disclosed because the doctor told him that such information did not need to be included in the certificate. He did write however in response to a suggestion that he might be suffering from stress, that his condition had been impacted by unrelenting pressure, enormous hours, and expectations at Racing Queensland.
- On Thursday 2 February 2017, the applicant said that he received a phone call from Ms Urselmann (T1-35) in which Ms Urselmann said that the first respondent had asked her to call him and to find out whether he had made a decision yet.
- The applicant complained that Ms Urselmann had breached normal protocols in contacting him during his sick leave. The applicant said that Ms Urselmann commented during the phone call that it was unusual for HR to make contact with a staff member on sick leave until one or two days prior to the expiry of a medical certificate. The applicant, in these circumstances, took issue with the call because it appeared to have been made over two weeks earlier than normal.
- The effect of Ms Urselmann's evidence was that she did not agree that there was anything inappropriate about her phone call to the applicant on 2 February 2017 (T1-97). She said that it was standard HR practice to "keep in touch with employees, particularly prior to a medical certificate running out". She said that such calls were made to determine what the employee's plan was, when the next doctor's appointment was, whether and when the employee was hoping to return to work, and whether further time off was required. Ms Urselmann agreed that the HR call would not normally be made 18 days prior to the expiry of a medical certificate but said that each case was treated differently, depending on what was known about an employee’s particular circumstances.
- In my view very little turns on the applicant's complaint that the timing of the call to him in some way or other deviated from standard practice and that it was inappropriate for the call to have been made. The applicant was a senior employee who held a key position in the organisation. It was understandable that his supervisor would want to be well informed on his condition and when he could be expected to return to work. This aside, on the applicant's own evidence about what transpired in his discussion with the first respondent on 23 January 2017, a follow-up call was not unexpected.
- It was the applicant's evidence that he was the target of a culture of bullying from the day that the first respondent commenced employment with Racing Queensland. He said that in his interactions with the first respondent, she was "extremely aggressive, negative, almost abusive", and acted in a belittling manner. He said the first respondent made constant allegations that he had not provided her with information or documents in circumstances where, on his version, they had been provided. He said that the first respondent had a manner of dealing with him in a way which constantly kept him off balance.
- The first respondent denied that she bullied or otherwise mistreated the applicant, while Ms Lorena and Mr Forbes said that they were not aware of any such behavior and that no complaint of bullying had been made to them by the applicant.
- The applicant's allegations against the first respondent are to be comprehended in a factual context where the first respondent did not commence work at Racing Queensland until Monday 12 December 2016. Prior to the first respondent's arrival, the applicant had reported direct to the Chief Executive Officer. The first respondent had extensive experience in the accounting and finance disciplines and had worked as a Chief Finance Officer for large organisations since 1999. On Mr Forbes' evidence, the performance of the applicant would have come under close scrutiny upon the arrival of the first respondent.
- The applicant was supervised by the first respondent for two weeks prior to the Christmas break and for three days between Christmas and New Year. The applicant commenced two weeks annual leave on 3 January 2017 before resuming work on Tuesday 17 January 2013. He worked for four days prior to commencing sick leave on Monday 23 January 2017. At the time of commencing sick leave, the applicant had worked with the first respondent for a maximum of 17 days.
- The history provided by the applicant to Dr Alponsu and Ms Carlile did include reference to bullying type behaviours. The difficulty with these references is three-fold. Firstly, because the references rely on a history provided by the applicant, the information has no corroborative value. Secondly, in circumstances where both Dr Alponsu and Ms Carlile were the applicant's treating practitioners over a long period of time, including after his litigation against the respondents had commenced, it is not known whether the history provided had changed over time, particularly after the applicant had commenced his litigation against the respondents. Thirdly, it was clear in the evidence of both Dr Alponsu and Ms Carlile that the applicant had not provided a complete history, and may have misrepresented particular events or scenarios.
- In his report (Exhibit 37), Dr Alponsu said that the applicant told him that there was tension between him and the first respondent from the beginning and that she wrongly accused him of not meeting deadlines, questioned his performance, was insensitive when he applied for sick leave and made unacceptable comments, unnecessarily asked HR to contact him while on leave, suggested resignation several times, made the job harder for him to continue, and got him to sign his resignation without giving adequate time to study the resignation letter and offer.
- The applicant did not inform Dr Alponsu that a large part of his job may be outsourced, that he had requested a redundancy payout, and that his employment had ended at his initiative. He preferred to characterise his departure from Racing Queensland as being solely attributable to coercion applied by the first respondent.
- In Ms Carlile's report (Exhibit 31), she said that when the applicant first consulted her, he said that he felt that the first respondent had traumatised him "as he felt that she was badgering him to resign as she kept repetitively suggesting that he resign".
- The effect of Dr Issapour's evidence was that, while bullying was raised with him, it was not raised by the applicant during the first consultation on 23 January 2017, but was raised in a discussion that he had with the applicant's psychologist on 24 February 2017. In the letter from the psychologist which was provided to Dr Issapour on 23 January 2017, the psychologist had associated the applicant's "chronic" stress with "long term family and workplace circumstances".
- Consistent with a history of long term stressors, Dr Issapour said in his report (Exhibit 30) that when the applicant first attended on him on 23 January 2017, the applicant told him that "work has been extremely stressful with him working 70 hours a week for the previous 10 months". Also, when the applicant spoke to the first respondent on 23 January 2017 he referenced stressors such as unrelenting pressure and enormous hours. In a similar vein, Dr Alponsu said in his report that the applicant told him that he "was feeling burnt out by December 2016". Finally, Dr Forbes' notes of the 6 March 2017 meeting include an entry to the effect that the applicant said that his illness was directly related to working at Racing Queensland for three years.
- Dr Issapour said that the applicant's psychologist told him about bullying in a phone conversation on 24 February 2017. Dr Issapour said that the psychologist told him that the applicant suffered from a severe stress and anxiety disorder as a result of being exposed, for a long time, to bullying and a very abusive boss. The psychologist was not asked to give evidence in the proceedings, and it is therefore difficult to reconcile a history of long term bullying and abuse, with the factual matrix in which, as at 23 January 2017, the applicant had only worked with the applicant for seventeen days.
- There was no record of bullying behavior in the applicant's 23 January 2017 diary note, and while evidence of disaffection appears from a reading of the diary notes written on 1 March 2017 (Exhibit 16) and 3 March 2017 (Exhibit 17), the notes only faintly support a finding of bullying. In Exhibit 16, the applicant suggested that the first respondent blamed him for a performance management plan not being completed and "criticised/lectured" him for not having informed her about an insurances issue in circumstances where the applicant thought that he had passed on the information. In Exhibit 17, the applicant noted that the first respondent was offering "no real support" and noted that a continual offer for him to resign was "distressing".
- Ms Lorena's notes of the 6 March 2016 meeting disclosed that the applicant said in the meeting that the stress of his role at Racing Queensland was the leading cause of his stress. However Mr Forbes' notes of the meeting disclosed that while the applicant did not want to turn the meeting in a "bitch fest" about the first respondent, he did take the opportunity to defend himself against some of the criticisms levelled by the first respondent, including matters relating to insurances.
- The applicant did not adequately explain what motivated him to make a record of his interactions with the first respondent on and after 28 February 2017, but he said he did so on the recommendation of a friend because some comments of the first respondent were inappropriate. It is relevant that around the same time as he was keeping a record of interactions in the week that he returned to work, the applicant was also foreshadowing legal action, or some other form of action, against his employer.
- In this regard, the applicant had told the first respondent on 3 March 2017 that, due to his ill health and the failure of Racing Queensland in their duty of care over a period of time, he would be considering all options available to him. In his meeting with Mr Forbes and Ms Lorena on 6 March 2017, on Mr Forbes' notes, the applicant reiterated his request for a redundancy payout and said that he did not want to initiate proceedings. He said in his evidence that the reference to "all options" meant the making of a WorkCover claim. If the applicant had contemplated making a WorkCover claim, it is likely that he would have known that he would require evidence of unreasonable management action.
- It was the respondents' evidence that the applicant never informed anyone at Racing Queensland about the nature of his illness or what it was that required him to take five weeks sick leave in January and February 2017. The first respondent said that the applicant never informed her of the reason for his absence from work. The effect of her evidence was that the only information that she received was that which was included in the applicant's medical certificates.
- The applicant however maintained that his 23 January 2017 diary note indicated that the first respondent knew that he was suffering from work related stress. An acknowledgement however that work conditions had been stressful toward the end of 2016 does not convey any acceptance of the proposition that the applicant was impaired pursuant to the Act definition.
- Ms Urselmann was not asked when she gave evidence whether she was aware of the reason for the applicant's absence from work in January and February 2017. Ms Lorena said that when she received a phone call from the applicant on 20 February 2017, she knew that the applicant was sick and knew that he was going to be sick for some further period of time. She did not say however whether she knew anything about the nature of the applicant's illness.
- It was Ms Lorena's evidence that it was normal practice for Racing Queensland to require an employee returning to work after a period of sick leave to provide a medical certificate certifying that the employee was fit to return to work. Consistent with this evidence, when the applicant attended on Dr Issapour on Friday 24 February 2017, he was issued with a certificate (Exhibit 15) stating that he was fit to return to work on Tuesday 28 February 2017.
- In his evidence in the proceedings the applicant said that when he returned to work on 28 February 2017, the first respondent was "quite short with him"; "aggressively rebuked" him when he sought a meeting and told him that she "had more important things to do" than meet with him; and was "very aggressive for about 25 minute" when she agreed to meet with him. The applicant said that he left the meeting feeling "very stressed, anxious and belittled".
- While the applicant's contemporaneous diary notes included evidence of criticisms, they do not reflect some of the sentiments expressed by the applicant in his evidence in the proceedings. In his 1 March 2017 diary note (Exhibit 16), the applicant said that the first respondent had "criticised/lectured" him in relation to insurance issues and said that it was his fault that a performance management plan had stalled. In his 3 March 2017 diary note (Exhibit 17), he said that after telling him that she was too busy to meet that afternoon, the first respondent "relented and spent approx 25 minutes running through a number of matter(s) – the more pressing ones that I had to work on".
- In terms of his health, the applicant's 1 March 2017 diary note recorded that he had slept very badly on the night of 28 February 2017 and that he was "already feeling pretty stressed after one day back" at work. His 3 March 2017 diary note made very limited reference to his health or to stressors. The diary note recorded that the applicant felt that he was given "no real support" when he was told that he would not get a redundancy payment and when he was told that he could resign if he wished. An entry also described a "continual offer" for him to resign as "distressing".
- In his evidence in the proceedings the appellant said that the cumulative effect of the first respondent's suggestions of resignation left him "crushed" and "devastated", and that he felt his health deteriorate and his "stress and anxiety levels soared". He said that he felt wrecked and panicked and that his state of health was worse than what it was when he commenced sick leave on 23 January 2017. It was this condition that prompted him to approach the second respondent on 2 March 2017 and ask that his position be made redundant. This evidence is not consistent with how the applicant had rationalised his circumstances in his 3 March 2017 diary note:
On Wednesday I approached jh to see what was instore for me with all the changes occurring and the probability of IA being outsourced particularly combined with her A&RC paper where she emphasised that an Internal Audit function is not required. She was non committal but mentioned that I need to look after what is best for me and that I could choose to resign if I wanted. I told her that I do not intend to resign. She told me to give more thought overnight and on what is best for me and what I should do.
On Thursday morning I popped in to see JH first thing and told her that given my health and the impending abolishment of my role, that the organisation might consider abolishing now and making me redundant. Would allow me a little time to get my health right and decide on next work/career move. JH said that she would check with HR and get back to me.
- The applicant's evidence that he was impaired at the time that he discussed his redundancy, and when he was required to consider the deed of release, was disputed by both Mr Forbes and Ms Lorena. In terms of the 6 March 2017 meeting, the effect of Mr Forbes and Ms Lorena's evidence was that while the applicant was emotional and nervous and upset during the meeting, they did not accept that the applicant was in any way acting irrationally or that his judgment or reasoning was impaired at the time. While the applicant took a break from work after the meeting, he was in a composed state when he returned to work. It is also relevant that the applicant did not mount any significant challenge to the respondents' evidence that the applicant showed no signs of emotional distress during his two days at work after signing the deed. Further no evidence was adduced to the effect that the applicant demonstrated remorse or regret at his decision to leave the employment of Racing Queensland and to sign the deed of release.
- In his report (Exhibit 30), Dr Issapour said that the applicant was clearly suffering from anxiety on 23 January 2017; that on 9 February 2017, the applicant scored "really high" for both stress and anxiety on a DASS questionnaire, and he arranged a mental health care plan to facilitate a referral to a psychologist; that on 16 February 2017, the applicant showed improvement due to time off work; and that on 20 February 2017 the applicant's medical certificate was extended by one week to "continue his management plan and to maintain his improvement". Finally, on 24 February 2017, the applicant indicated that he wanted to return to work on 28 February 2017 to "try to sort out his work issues".
- In his evidence in the proceedings, Dr Issapour was asked to give his opinion about the applicant's condition when he assessed the applicant on 24 February 2017 (T2-4):
Okay. Thank you. And when clearance was provided to return to work on the 28th of the 3rd, did that mean that my condition was essentially under control to return to work?---Essentially, but we did think it’s a bit difficult because the stress was caused by work in the first place. The first course of action was actually to keep you away from work and see how you go, and then planning, actually, to put you back when you had a hope of – that work is actually tending to the problem. But not essentially completely gone because the stress was because of external trigger, which was work at that time.
- While Dr Issapour said that there was a level of uncertainty associated with how the applicant would cope on his return to work, he accepted that, at the time that he and the applicant made the decision on 24 February 2017 about a return to work, the applicant was expected to be able to function normally at work, that his perception of reality was not impaired, and that he was not demonstrating disturbed behavior (T2-10):
Yes?‑‑‑But it’s not completely black and white.
But you were satisfied ‑ ‑ ‑?‑‑‑At that stage I wasn’t – we both agreed that he would be ready to try it again – would be fit to start work again.
Yes. So you weren’t of the view – because you did issue the certificate that he was fit to return to work ‑ ‑ ‑?‑‑‑Yes.
You weren’t of the view that his thought processes, for example, were so impaired ‑ ‑ ‑?‑‑‑Yes.
‑ ‑ ‑ that he would not be able to function normally at work. You were not of that view, were you?‑‑‑No.
No. And you were also not of the view that his perception of reality was so impaired that he would not be able to function normally at work, were you?‑‑‑I wasn’t what? Sorry, I lost your voice.
Because you issued that certificate that he was fit to return to work at that time, you were not of the view that his perception of reality was so impaired that he would be unable to function normally at work?‑‑‑No, not at that day, I wasn’t.
Thank you. And because you issued that certificate, you were also of the view that, for any of those reasons, including the possibility of impaired judgment, that he was not demonstrating disturbed behaviour; is that correct?‑‑‑Correct.
- It is relevant that Dr Issapour's return to work certificate was in no way conditional and was unambiguous in stating that the applicant was fit to return to work. Dr Issapour did not make the applicant's return to work conditional on adjustments nor did he provide for a graduated return to work. Dr Issapour said in his report that the applicant indicated to him on 24 February 2017 that he wanted to return to work on 28 February 2017 "to try to sort out his work issues". In his evidence in the proceedings he said that he and the applicant agreed that he would be fit to start work again.
- In her report prepared in February 2019, Ms Carlile issued a clinical opinion to the effect that the applicant's judgement would have been impaired when he signed the deed of release in March 2017:
It is my opinion that Mr Campbell was in a significant state of distress/anxiety during his final weeks at Racing Queensland. Although I was not engaged in therapy with Mr Campbell at the time of his cessation of employment, based on his self reported symptoms, his presentation and psychometric data at our initial consultation, it is my professional opinion that Mr Campbell's symptoms of anxiety would have led to impaired judgment related to his final decision making to leave his employment and accept the Deed of Release document.
In summary, it is my opinion that Mr Campbell's mental health was significantly affected by events that occurred in Racing Queensland n the lead up and final process of his cessation of employment.
- In forming this opinion, Ms Carlile relied exclusively on what she had been told by the applicant. Significantly, it appears that in this process of information sharing, the applicant may not have provided a complete history (T2-20):
MR HARDMAN: Okay. Did Mr Campbell tell you that he, at his own initiative, arranged a meeting with the CEO of his employer?---Look, you’re getting into really specifics here which when we first was doing therapy, that was in 2017 and I have got notes here but you’re now asking for a very specific, you know, incident. So it’s very hard for me to answer that.
COMMISSIONER: It’s – if you can’t recall, Ms Carlile, tell us that?---Look, I couldn’t recall accurately.
MR HARDMAN: All right. Did Mr Campbell tell you that he was seeking a redundancy from his employer, Racing Queensland?---Again, I – I – I’m not – I wouldn’t be able to accurately answer that.
All right. Did Mr Campbell tell you that he, in a meeting with the chief executive officer that he initiated, that he had asked to be moved on from Racing Queensland?---As I said, I – I – I can’t – I can’t specifically, you know, talk about a particular conversation he had and the detail of that and so, look, again, I can’t be – I couldn’t answer it with absolute – and, you know, this is [indistinct] 100 per cent accurate. So I’m sorry but I can’t actually accurately recall exactly that.
- I am not inclined to assign significant weight to Ms Carlile's opinion for a number of reasons. Firstly, the applicant did not consult Ms Carlile until well after he had left the employment of the second respondent. Secondly, while the applicant had been consulting another psychologist around the relevant time period, this psychologist was not called to give evidence. While she was aware that the applicant had been treated by another psychologist, Ms Carlile admitted that she had not accessed the prior psychologist's notes, nor talked to this psychologist. Thirdly, Ms Carlile had little recall or knowledge of the specific facts relevant to the applicant's circumstances when he returned to work on 28 January 2017 and she may have been acting on an incomplete history. Fourthly, Ms Carlile did not address the inconsistency in her evidence and the evidence of Dr Issapour who had assessed the applicant only a few days before he returned to work and did not agree that his judgment was impaired. Finally, Ms Carlile's testimony could in part be characterised more as advocacy on behalf of her patient rather than the presentation of an objective or independent medical assessment.
- In his report, Dr Alponsu said that the applicant told him that when he returned to work on 28 February 2017, he "continued to have difficulties in interactions with his supervisor", and that "as the situation got worse", the organisation discussed the option of the applicant resigning. Dr Alponsu was then told by the applicant that "he was operating under a haze and signed the document at short notice". Dr Alponsu was not asked during his evidence to provide a similar opinion to that provided by Ms Carlile, and his report did not include any opinion to the same effect.
- The first respondent wrote in her file note of 5 March 2017 (Exhibit 20) that when the applicant returned to work on 28 February 2017 "it was obviously quite difficult for him". The same file note recorded that in her discussion with the applicant on 3 March 2017, she had "re-emphasised his health was his most important aspect" and had suggested to the applicant that it was important that he meet with his doctor "soon after his first week back to see how he is feeling".
- Ms Lorena knew that there was a doubt about the applicant's capacity for work when the applicant told her on Wednesday 1 March 2017 that he may need to take further leave. This discussion had prompted Ms Lorena to tell the applicant that if his doctor felt that it was appropriate, consideration could be given to the implementation of a suitable duties plan.
- Further, both Ms Lorena and Mr Forbes were told by the applicant on 6 March 2017 that he felt that he could no longer work and attributed his illness to stress arising from his employment with Racing Queensland.
- I accept that the evidence supports a conclusion that, some time after his return to work, the respondents became aware that there was something amiss with the applicant, that he was not in a robust condition, and that there was a doubt about his capacity to perform his normal duties. Despite this, the respondents did not have any medical appreciation for the applicant's condition, nor were they aware of all the causal factors.
- Whether, the respondent's evidence is sufficient to support a finding that the applicant was impaired pursuant to the Act definition is a matter for consideration. However, while the respondents were concerned about the applicant's condition, they did not generally perceive the applicant's behavior to be disturbed or irrational. Viewed across the eight days at work after the applicant returned from sick leave, while the applicant demonstrated anger and disappointment at being told that his request for a redundancy payout had been denied, and while the applicant was upset, emotional and nervous during the meeting on 6 March 2017, his demeanour on other occasions did not demonstrate impairment.
- It is also relevant that despite attending on Dr Issapour on four occasions during February 2017, the applicant's condition did not necessitate him seeking any form of medical or psychological treatment during his time at work after 28 February 2017.
- The applicant's evidence was that after his meeting with the first respondent on 1 March 2017, he formed the view that the first respondent wanted his resignation, and that he began to think about a redundancy option. After consideration, he approached the first respondent the next day and asked for a redundancy payout.
- While I accept that the applicant may have interpreted the reference to a resignation as a signal that his employment with Racing Queensland was unlikely to continue, I doubt that the applicant only asked for a redundancy payout because he perceived that the first respondent wanted his resignation. Consistent with previous discussions, the resignation option was raised in a context where a substantial part of the applicant's job was likely to be outsourced and where the first respondent had just declined to give the applicant any assurance that his position would survive the imminent restructure. It was also relevant that the applicant, despite the alleged pressure, did not hesitate to the tell the first respondent that he would not resign. A response which, in my view, was entirely sensible in circumstances where that applicant would have known that if his position were to be substantially restructured or eliminated, the respondents would have been obliged to give him a redundancy payment.
- Irrespective of the reason provided in his evidence, the applicant's diary note confirms that when he put the request for redundancy to the first respondent, he did so on the basis of his health and what he regarded as the impending abolition of his role. He also said that a payout would allow him time to recuperate and to settle his next career move.
- The first respondent agreed that the applicant asked her whether he could be provided with a redundancy package. She said that she responded to the applicant by telling him that she would "need to consult with human resources on that, to ensure it was a true redundancy".
- It was the first respondent's evidence that when she consulted with human resources, Ms Lorena told her that "it couldn't be a redundancy, at that point in time, because the role was still valid. It hadn't been outsourced, so, therefore it didn't meet the test of redundancy". Ms Lorena's evidence on the subject was consistent with the evidence given by the first respondent.
- The effect of the first respondent's evidence was that she informed the applicant that he was not eligible for a redundancy payment on Friday 3 March 2017. She said that the applicant was not happy with the outcome. In a file note (Exhibit 20), prepared by the first respondent on 5 March 2017, she recorded that "we were not in a position to offer a redundancy at this time as the outcome of the tender (as we had previously discussed) would inform us as to the future of the role". The first respondent also recorded that the applicant was "obviously annoyed" by the response, that he was visibly upset at not getting his package, and that he alleged that she and Racing Queensland had breached its duty of care.
- The applicant's 3 March 2017 diary note about the exchange was not inconsistent. He disagreed with the respondent's position on redundancy and said that his role had changed substantially and that the IR Act allowed for retrenchment in the event of a certain amount of change having occurred. He also told the first respondent that Racing Queensland had failed in his duty of care over a period of time and that he would be considering "all options available" to him.
- Subsequent to this discussion, and on Sunday 5 March 2017, the applicant sent a text (Exhibit 18) to Mr Forbes in which he requested a meeting with Mr Forbes early on Monday 6 March 2017. The applicant said in the text that he wanted to discuss matters that were causing him "considerable concern and stress".
Deed of release
6 March 2017 meeting
- Ms Lorena said that she was informed by the first respondent on Sunday 5 March 2017 that she was required to attend a meeting involving Mr Forbes and the applicant at 8.30 am on Monday 6 March 2017. Ms Lorena attended the meeting as the HR representative.
- The effect of the applicant's evidence (T1-45) was that, in the meeting, he spoke first and informed Mr Forbes that he was sick and that he did not think that he could come to work any longer. He said that the first respondent's actions had not been appropriate, and that Racing Queensland had failed in their duty of care. He then asked Mr Forbes whether there was any chance that he might be made redundant. My understanding of the applicant's evidence is that Mr Forbes did not respond to the request for a redundancy but shortly thereafter suggested to the applicant that he should take a break (T1-45):
Dr Forbes suggested that I might want to go home, because I was – I was pretty, you know, not well. I felt that I, for whatever reason, that I should just try and take time off work and compose myself and then come back. So I suggested that that’s what I would do. So that is what I did. I went away from work for a couple of hours. My home was only just down the road. And while I was away, the HR Advisor, who’d been in the meeting rang – rang me to make sure that I was okay, which was clearly a welfare check, to make sure that - - -
Yes. Yes?--- - - - I was okay.
Just tell me what happened?---And after about two hours, I returned to work and just let Ms Henwo – not Ms Henwood, Leanne know that I was back and then went to my office after the meeting.
Yes, we can keep going. So you went back to your office?---I went back to my office, you know, to be honest, I continued to operate in a haze through till the end of leaving Racing Queensland.
- Mr Forbes took notes during the meeting. A translated copy of his notes is in the evidence as Exhibit 28. In these notes, Mr Forbes recorded that the applicant said that his illness was directly related to three years of working at Racing Queensland. He claimed that Racing Queensland had failed in their duty of care. He pointed out that that he took sick leave and did not want to go down the "WorkCover pathway". According to the notes, the applicant referred to the outsourcing initiative affecting his role and to "job uncertainty". He said while he would like to have his role abolished, his request to this effect had been turned down.
- Ms Lorena said that the meeting went for about twenty minutes. On her observation, while the applicant appeared emotional and distressed during the meeting, she believed that he was able to articulate his position clearly. Ms Lorena said that immediately after the meeting she made notes of what was said and what transpired during the meeting. The notes are in the evidence as Exhibit 26.
- The notes serve as a record that the applicant appeared very nervous, that his voice was very shaky throughout the meeting, and that he was visibly and verbally upset. In terms of redundancy, the notes recorded that the applicant said that he would like to move on and that, prior to Mr Forbes' arrival at Racing Queensland, "others were paid to move on". In this context, when Ms Lorena asked the applicant what he was thinking of "$ wise", the applicant said that he needed "a buffer of like 6 weeks".
- The applicant denied that he proposed a payment of six weeks during the meeting. The applicant said that he did not recall making that statement and he drew attention to the fact that no similar reference was included in notes of the meeting written by Mr Forbes.
- It is difficult to objectively determine what the applicant's expectations were about the quantum of a redundancy payment. He said that he was aware that others had received separation payments, but he did not disclose whether he knew what payments were made. Given the almost certain inclusion in deeds of release of a confidentiality clause, it is probable that he did not know, in specific terms, what the payout figure was. What was known however was that the applicant had not yet completed three years of service with Racing Queensland and that his employment agreement did provide for a redundancy payment.
- Clause 15 of the employment agreement (Exhibit 8) provided for an entitlement to redundancy pay "in the event the Employee's Position is no longer required". Any redundancy payment was to be based on the employee's years of continuous service and calculated in accordance with a scale included in Schedule 1 to the agreement. The scale provided that an employee with two years service, but less than three years service, was entitled to six weeks redundancy pay.
- It follows then, that if the respondents had acceded to the applicant's request for a redundancy payment, and if he had been paid consistent with his contract of employment, he would have received a redundancy payment of six weeks.
- It is relevant that when the applicant commenced as Head of Audit, Risk and Compliance on 29 March 2016, his employment agreement did not include a redundancy provision. However, on 27 October 2016, the applicant was provided with a new agreement which did include a redundancy clause. The applicant signed this agreement on 4 November 2016. It would be reasonable to expect that he would have been familiar with the redundancy entitlements included in his employment agreement and that in circumstances where he had, as early as 2 March 2017 asked for a redundancy payment, his expectation may have reflected his contractual entitlement.
- In his evidence in the proceedings, the applicant said (T1-89) that when he read the deed of release subsequently given to him by Ms Lorena, he looked at the numbers, did a high level addition, and came up with a figure of $25,000 which the applicant said he thought would probably be enough for him to recuperate sufficiently before he started applying for other jobs. This line of thinking is consistent with Ms Lorena's recollection that the applicant wanted a buffer of six weeks pay.
- On the considerations outlined above, it is difficult to sustain the applicant's claim that he was treated less favourably than other senior executives in the determination of the settlement sum. There is also no evidence at all that the applicant expressed any disenchantment with the terms of the deed at the time. He signed the deed before the start of work on 8 March 2017 and he worked eight hour days on 8 March and 9 March 2017. He therefore had two full days in which to canvass any concerns or regrets, or seek clarification about the terms of the deed, with Ms Lorena or Mr Forbes.
- It is arguably the case, on Ms Carlile's evidence, that the applicant's claim that he could not comprehend the settlement provisions of the deed, was not a reflection of his state of mind at the time, but more a case where, after the event, the applicant perceived that he must have been impaired because he had become aware of the terms of other settlements, and because these settlements were more favourable, he came to a conclusion that he could not have rationally accepted the offer that had been put to him: (T2-24):
Did he tell you that he was able, for example, to calculate the money that he was receiving as a result of signing the Deed of Release?---Yes, he did. He talked about that but then he recognises afterward that he – when he was doing those calculations, he realised how incorrect his thought processes were because – that was [indistinct] He said, 'I don’t know why I would’ve agreed to that because I managed to look at the calculations now, I don’t understand why I [indistinct] or thought that was okay."
And was that because he was aware that others had received more than him?---I – not that I’m aware of.
Well, did he say anything to that effect to you? You’re giving evidence on oath. This is important?---He referred to – and, again, I may have the timing wrong now, so I’m sorry I’d have to go back and very specifically look at the notes. He did refer that afterwards he was aware of other – other situations that were different to his.
That were better than his?---I believe so. Honestly, I actually can’t be – again, be absolutely certain but I think so.
- Mr Forbes did not provide the applicant with a response to his claim for a redundancy payout in the meeting, and it appeared that the meeting ended on the basis that the applicant's request would be considered by Mr Forbes. On Ms Lorena's notes, the meeting ended with the applicant thanking Mr Forbes for his time and Mr Forbes saying that his decision would be made with the applicant's health in mind.
Preparation of the deed
- It was Ms Lorena's evidence that subsequent to the meeting with the applicant it was decided to put an offer to the applicant facilitating his separation from Racing Queensland. She said that Mr Forbes held the delegation to make that decision, and that he did make the decision, not the first respondent. The first respondent's evidence was the same. She said that while she was aware of the offer made to the applicant, she did not play any role in the decision and that the decision was made by Mr Forbes.
- Mr Forbes confirmed that he was the decision maker in relation to the offer made to the applicant. He said that after meeting with the applicant he discussed an appropriate response with Ms Lorena and Ms Henwood (T2-80) and that they agreed that it would be appropriate to allow the applicant to resign, to not work out his notice period, and to make a payment to him that was equivalent to about seven weeks pay.
- It was Ms Lorena's recollection that when the deed of release was prepared, she would have spoken to the applicant and presented him with the deed. This approach appeared evident in an email that Ms Lorena sent to the first respondent on Tuesday March 7 2017 at 3.02 pm (Exhibit 19):
Do you approve for me to have the verbal conversation with the employee detailing the offer and advise our intention is to present the details in writing (Deed) this afternoon. That way as soon as I receive signed doc I can email to them and we can stick with the timeframes of an end of date of Thursday. It may be better to conduct verbally in the first instance in case there is some pushback.
- In his evidence, the applicant accepted that he received the deed at work some time after 3.02 pm on 7 March 2017, and that he signed the deed at home the following morning before he left for work (T1-47):
… On the afternoon of the 7th, Ms Lorena, kind of waved me down in the – in the office, it’s a fairly long office. Partway down the office, and she had an envelope in her hand, and she – she, basically, said, "I’ve got something for you". We walked into a meeting room. That was to the side. She pulled the – the document out of the envelope and said, "There’s an offer here and you should – it’s – it’s not negotiable, you should take away and read it and get it back to me as soon as you can". Put the document back in the envelopment, gave it to me, and we walked out of the room. So I took it back to my office, and then when I went home that night, is when I tried to read it. I wasn’t very successful in reading it. I continually got jumbled up in where I was up to. I – I’d go back and re-read and I, certainly, feel that I didn’t read and comprehend the full document.
- The applicant's proposition that the deed was presented to him on a "not negotiable" basis was not challenged during Ms Lorena evidence, nor canvassed with Mr Forbes during his evidence.
- It is difficult to accept that when the applicant was given the deed by Ms Lorena, and took the deed back to his office, he did not read the deed there and then. Nor do I find particularly plausible the applicant's evidence that when he took the deed home with him, he had no capacity to read the deed. It was his evidence that when he got home, he made a number of attempts to read the deed, but was unable to comprehend the content of the document.
- I do not accept that an experienced internal auditor would not have had some general familiarity with deeds of release, or documents serving a similar purpose or of a similar complexity. Nor do I accept that, despite the stressful circumstances, the applicant would be incapable of perusing the deed, at least to the extent of becoming familiar with the centerpiece of the document which was the "Settlement" clause. In this regard, the applicant, in effect, conceded in his evidence that he knew the key monetary benefit, and knew that this provided an adequate buffer (T1-89):
---Okay. Well, look, all I can say in relation to understanding the deed of release, as I’ve already described, I attempted to read it; I attempted to re-read it; I couldn’t concentrate; I hadn’t been sleeping. I actually attempted reading it the following morning with similar results, and - - -
Are you saying you have no comprehension of – at all? That you couldn’t – you couldn’t even see the numbers on it?---No, I s - - - You didn’t know what - - -?---No, I saw the - - - - - - the financial - - -?--- - - - numbers on there. In fact, I did a high-level addition, which is where I came up with the figure of $25,000 – that it added to at least $25,000, and in my head that would probably be enough for me to recuperate sufficiently before I went and – and – and started applying for other jobs.
- Relevant to this evidence, the three components adding up to a figure near $25,000 were the payment in lieu amount of $14,663, the severance payment of $5,865, and the outstanding wages payment of $3,900.
- The deed is in the evidence as Exhibit 24. It is a little more than three pages in length and comprises twelve clauses. Each clause is given a title which is capitalised and in bold font. The centerpiece of the deed, Clause 2 – Settlement, appears on the first page of the deed. The settlement terms comprise five monetary components, each of which are clearly set out and identified:
- (i)An amount in respect of "accrued and unused annual leave balance";
- (ii)An amount in respect of "pay in lieu of notice";
- (iii)An amount in the form of a "severance payment";
- (iv)An amount in respect of "hours worked to close of business on 9 March 2017"; and
- (v)An amount in respect of the "employer's contribution to superannuation".
- All the amounts were expressed in money terms, not in terms of weeks or hours. However, it would not have been challenging for the applicant to identify that the non-statutory components were the severance payment ($5,865.35) and the payment in lieu of notice ($14,663.35).
- The applicant also argued that the respondents, in settling the terms of the deed, deployed a process that was intended to disadvantage him and to manipulate outcomes favourable to them. However, he was not supported in this proposition by Ms Urselmann, and there was no other supporting evidence.
- It was Ms Urselmann's evidence that the process associated with the settling of deeds was usually managed by the second respondent's general counsel with support from the human resources team. She said that from the human resource perspective, there was no set process. She said that she had an involvement in a couple of meetings that were convened to negotiate the terms of settlement of a deed (T1-95).
- Ms Urselmann said that in one meeting, she accompanied the CEO and the general counsel participated, while in the other instance, there was no HR representation. In the matter that she was associated with, she said that the CEO had an initial conversation with the departing employee. In a subsequent meeting which she attended, the deed was handed over to the employee for his or her perusal.
- The evidence does not support the applicant's contention that he was less favourably treated in that he was not given an explanatory letter with his deed. The evidence does not support a finding that this was the general practice of the respondent and that for unexplained reasons the respondents declined to provide the applicant with such a letter. Nor was there any evidence substantiating a view that any explanatory letter was necessary.
- While the deed of release was executed on Wednesday 8 March 2017, the applicant's employment with Racing Queensland did not end until the close of business on Thursday 9 March 2017. The first respondent said that there was a significant hand over to be completed and that she had a number of conversations with the applicant on either 8 March 2017 or 9 March 2017. She said that she had a variety of interactions with the applicant, both formal and informal, and that these interactions included discussions in her office with the applicant that lasted for at least one hour. She described the applicant's presentation during these engagements as upbeat and coherent. She said that he was relaxed in his demeanour, very polite and respectful.
- For the applicant to succeed he must prove:
- (i)That he was subject to less favourable treatment; and
- (ii)That he was impaired at the relevant times; and
- (iii)That there is a causal connection between the less favourable treatment and the impairment. That is, the less favourable treatment would not have happened had he not suffered from an impairment.
Less favourable treatment
- The applicant's case that he was treated differently and less favourably than another senior employee without an impairment turned on two key propositions. Firstly, that the first respondent only pressured him to resign because she knew that he was impaired and vulnerable to pressure. Secondly, the respondents would have made a number of different decisions associated with the deed of release, and decision that were more favourable to the applicant, had the applicant not been impaired. In terms of the deed of release, the applicant argued that an unimpaired senior executive would not have been:
- Denied the opportunity to give input into the terms of the deed;
- Offered terms that were inferior by reference to prevailing standards;
- Presented with a deed which was, in respect to its key provisions, expressed in confusing and misleading terms and which was not supported by an explanatory cover letter;
- Denied the opportunity to get legal advice in relation to the deed.
Pressured to resign
- Two factual determinations are required to be made. Firstly, did the first respondent pressure the applicant into resigning. Secondly, did the first respondent embark on this course of action because she knew that the applicant was impaired.
- The factual matrix does not support the applicant's claim that he was constantly harassed and pressured to resign. I accept that resignation was mentioned in discussions in December 2016, on 23 January 2017, and on 1 March 2017. The mention on 3 March 2017 is not relevant because it comes after the applicant had made his decision to ask that his employment be ended by way of a redundancy.
- Three mentions of a resignation across three months, in the particular context that the topic was raised, is insufficient to sustain the applicant's claim that he was subjected to repeated suggestions, encouragement and pressure to resign. The facts in my view do not support a claim that the applicant was bullied and harassed into a resignation.
- Other matters are relevant. Firstly, the applicant never submitted a resignation. He told the first respondent on 1 March 2017, that he would not resign. What the applicant did was to initiate a discussion or negotiation about the ending of his employment by way of a redundancy. When the respondents refused to make the applicant redundant, they knew that the applicant had said that he would not resign. In these circumstances, the applicant must have known that when the respondent declined to act on the opportunity to end his employment, his employment would continue. There would be no resignation and no redundancy. Despite this, the applicant decided to challenge the decision on redundancy and get it overturned by Mr Forbes. This is not conduct consistent with the behavior of someone who has been bullied into resigning.
- Secondly, the applicant alleged that the first respondent commenced pressuring him to resign after she became aware the he was impaired. In my view however, the evidence, including the medical evidence, is not sufficient to warrant a finding that the applicant was impaired in December 2016 when the resignation option was first raised.
- To support his allegation that he was harassed into resigning, the applicant also pressed allegations of bullying. These allegations have not been made out. The short period of time that both the applicant and first respondent were together in the workplace questions the viability of the applicant's claim. His claim is also inconsistent with other evidence which indicates that his stressors were not conveniently compressed into the seventeen days that he worked with the first respondent, but were present for a considerably longer period.
Deed of release
- The evidence does not support a finding that the applicant was treated less favourably in the redundancy process. He came to his employer with an explicit request that his employment be ended, that his position be abolished, and that he be paid a redundancy benefit. He made this proposition because of his health and because he expected his job to be eliminated.
- The difficulty for the applicant in trying to promote a position that his deed was less favourable than deeds struck for comparator employees, is that each deed is a unique document and the terms of each deed will vary having regard to the particular facts and circumstances associated with each separation. A range of variables usually come into play, including length of service, position held, the terms of the employment contract, which party initiated the separation, whether the separation was voluntary or involuntary, and assessments about prospective future litigation. He cannot sustain an argument that he was less favourably treated by reference to deeds struck for other senior executives in circumstances unknown, irrespective of whether such terms were more generous than those provided to him.
- What the applicant needs to do is establish that the terms of the deed offered to him were inherently unreasonable or were manifestly inferior to those which might be expected to be offered to a senior employee in similar circumstances. In this regard, I do not accept that such a state of affairs has been made out in circumstances where the applicant had only completed two full years of service, where he proposed the ending of his employment, and where his own recently negotiated employment agreement provided for a redundancy payment of six weeks.
- The same employment agreement also provided that it was only at the employer's discretion that an employee would not be required to work out his notice, and a payment made in lieu. In the applicant's case, the respondents exercised a discretion to not require him to work out his notice, and also to give him an ex gratia payment of two weeks. As a consequence, the applicant had effectively been given seven weeks paid leave to facilitate his recuperation and to find other employment.
- I accept that, under a true redundancy arrangement, the applicant may have received both the payment in lieu of notice and six weeks redundancy pay, in which case his entitlement would have been eleven weeks pay with immediate termination. However, this was not a true redundancy and the offer of seven weeks pay appeals as a reasonable compromise.
- Turning to other elements of less favourable treatment said to exist by the applicant, I do not accept that less favourable treatment was associated with the decision not to give the applicant an explanatory cover letter. Other than his own retrospective complaint, the applicant provided no evidence to support his claim. There was no evidence that it was the normal practice to provide senior employees with a cover letter, nor does the evidence suggest that there was any need for a cover letter.
- Nor did the evidence support a finding that the applicant was treated less favourably in terms of the process that the respondents had deployed in settling the terms of the deed. The applicant asked for a redundancy payment. When his request was rejected, he elected to re-agitate his request direct with Mr Forbes. After consideration, Mr Forbes elected to provide an offer to the applicant which he believed was not significantly inferior to what it was that the applicant had requested. The applicant never asked for another meeting with Mr Forbes, nor did he, during the time that he was employed either before or after the execution of the deed, give any indication that he was either surprised by or dissatisfied with the process.
- I have no reason to believe that the respondents would have approached the matter any differently if another senior employee in similar circumstances had initiated a discussion about the ending of his employment.
- The applicant, also retrospectively, took issue with the amount of time that was allowed for consideration of the deed in circumstances where he was not given a copy of the deed until late on the afternoon of 7 March 2017 and where the deed provided that his employment would end on 9 March 2017. In his view insufficient time was available for him to secure legal advice.
- While only a short time had elapsed between the presentation of the deed and the end date of his employment, the applicant had been exercising his mind on a redundancy payment since, at least, 2 March 2017. If he had thought that he needed legal advice, he had ample time to get that advice either prior to the meeting that he asked for on 6 March 2017, or on receipt of the draft deed. There was nothing preventing him telling Ms Lorena on 7 March 2017, when she gave him the deed, that he would need a day or so to get advice. The applicant was the Head of Audit, Risk and Compliance and he could not have been expected to be daunted by the prospect of dealing with lawyers or to have experienced any difficulty in making contact with a lawyer. Finally, if Ms Lorena's evidence is accepted, there may not have been any need for a lawyers' advice in circumstances where the offer made could be said to be broadly equivalent to what it was that the applicant was seeking.
- A senior employee without an impairment could be expected to have a reasonably sound understanding of the processes that would follow a discussion about redundancy. This understanding would include an appreciation that a deed of release would be required, and at least a basic familiarity with the operative terms of a deed of release. I also accept that a senior executive proposing the ending of his employment in these circumstances would have a pre-determined view about the quantum of a redundancy payment to be included as a term of a deed. If the senior employee did not have this level of understanding, it could be presumed that the senior employee would get relevant advice before making the approach to his employer.
- I am not satisfied that the applicant was less favourably treated in the resolution of the terms of the deed or that he was treated less favourably in the process associated with the settlement of the terms of the deed or the execution of the deed. Given this finding, the applicant must fail. For the sake of completeness however, I include a consideration of the claim of impairment.
- I limit my consideration to whether the applicant was impaired when he made his decision to request a redundancy payout on 2 March 2017 or when he decided to sign the deed of release on either 7 or 8 March 2017. In this process of evaluation, the starting point is a consideration of the medical evidence.
- The most reliable evidence was that provided by Dr Issapour in which he confirmed that the applicant was not impaired when he cleared the applicant to return to work on 24 February 2017. While I accept Dr Issapour's evidence that the dominant stressors were work related and that there was always a possibility that the applicant would not manage the transition back to work, the applicant did not seek medical treatment between 28 February 2017 and 9 March 2017.
- The respondents were entitled to rely on the applicant's medical clearance, in forming a view about the applicant's condition when he returned to work on 28 February 2017. It was also a legitimate defence for the respondents to point out that the applicant never adequately briefed them about his reasons for taking five weeks sick leave, nor about the condition that necessitated the taking of sick leave. If anything, the applicant made a conscious decision to withhold such information. The evaluation of the lay evidence is completed in this context.
- There was a conflict of significant proportions between the evidence of the applicant and the evidence of the respondents around the issue of impairment and what impressions were formed about the demeanour and presentation of the applicant during the relevant period. In circumstances where I entertain a significant doubt about the reliability of the applicant's oral testimony on the subject, I prefer to be guided by the contemporaneous evidence, predominantly the diary notes made by the applicant and the first respondent, and the notes taken by Mr Forbes and Ms Lorena.
- The chronology included in the applicant's 1 March and 3 March 2017 diary notes does not, on balance, substantiate a finding of impairment. While the applicant said that he was feeling pretty stressed after his first day back at work, and while there was evidence of disgruntlement, a reading of the diary notes does not lead to a conclusion that the applicant's emotions, thought processes, or judgment was impaired in the period between 28 February 2017 to 3 March 2017. Further, it is relevant that the subject matter of particular discussions had by the applicant and the first respondent in the first week of March 2017, was not new and that it was similar in many respects to the discussion that took place in December 2016.
- I accept that the applicant's demeanour and presentation during the thirty minute meeting on 6 March 2017 should be classified differently. It was not in dispute that during this meeting, the applicant was in a very emotional state, distressed and nervous. While it may be arguable that the applicant may have been emotionally impaired during the meeting, the evidence indicates that he composed himself in a reasonably short period of time and returned to work.
- The applicant's evidence was that Mr Forbes suggested that he might want to go home because he was unwell. He said however, in effect, that it would be adequate if he went home for a couple of hours and composed himself. This is what occurred and the applicant resumed work about two hours later. Significantly, the applicant did not need to make any decision in this meeting, and after he explained the reasons why he should be made redundant, the meeting ended on the basis that Mr Forbes would consider his representations and get back to him. There was no independent evidence of emotional distress after the applicant returned to work and up to the ending of his employment on 9 March 2017. While the applicant's condition during the 6 March 2017 is relevant to an assessment of his state of mind on 7 and 8 March, 2017, it is not determinative and in the absence of other evidence does not substantiate a finding that the applicant was impaired on either 7 or 8 March 2017.
- The chronology set out in the applicant's 3 March 2017 dairy note, does not support a conclusion that the applicant's thought processes or his judgement were impaired when he elected to approach the first respondent and ask her to end his employment with a redundancy payment. On 1 March 2017, the applicant said that he approached the first respondent and asked what was "in store" for him, "with all the changes occurring", and with the probability of the internal audit function being outsourced. At this point, he was clearly exercising his mind rationally on the prospect that his job may no longer exist. Consistent with this understanding of his predicament, the applicant decided to approach the first respondent for a redundancy. When his request was declined he elected to seek a review of the decision not to provide a redundancy by making direct contact with Mr Forbes and asking for an urgent meeting.
- I do not consider that the applicant was acting irrationally when he decided to ask for a redundancy payment. Rather, and to the contrary, the applicant's reasons for so proceeding were entirely consistent with the factual circumstances in which he found himself. That is, there had been significant organisational change in the organisation, his reporting line to the CEO had been removed, he did not enjoy a good working relationship with his new direct report, he understood that his direct report had reservations about the standard of his work, and, underpinning these factors, was the real possibility that his position would either be abolished or substantially restructured.
- In terms of the deed signing, the applicant said that he got the deed late on the afternoon of 7 March 2017. He then took the deed home and signed it the following morning before work. On the respondents' evidence, which the applicant did not significantly dispute, the applicant did not disclose any sign of impairment when he presented for work on 8 March 2017, nor during the course of his work on 8 and 9 March 2017.
- I entertain a significant doubt about the applicant's claim that he was incapacitated during the process of settling the terms of the deed of release to the extent that he did not know what he was doing, that the complexity of the issues was beyond him in that condition, and that he was not capable of exercising a judgement about what was in his best interests.
- The applicant knew that the making of the deed would have been associated with the ending of his employment and that the principal element of interest in the deed was the terms of settlement. It is difficult to accept that the applicant would not be able to comprehend the settlement terms laid out in the deed, nor that he could not distinguish between his statutory entitlements and any additional entitlements peculiar to his claim of redundancy.
- The applicant has not persuaded me that he was impaired at the relevant times, nor that he had been subject to less favourable treatment. He has therefore failed to satisfy the statutory tests and his application cannot succeed.
- The application is dismissed.
- Published Case Name:
Michael Campbell v Justine Henwood and Racing Queensland Board trading as Racing Queensland (No 2)
- Shortened Case Name:
Campbell v Henwood (No 2)
 QIRC 125
06 Sep 2019