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Truffet v Workers' Compensation Regulator QIRC 201
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Truffet v Workers' Compensation Regulator
 QIRC 201
Truffet, Stuart David
Workers' Compensation Regulator
AppealagainstadecisionoftheWorkers' Compensation Regulator
11 December 2019
8 May 2018
31 May 2018
26 June 2018
5 September 2018 (writtensubmissionsof Respondent)
26 November 2018 (writtensubmissionsof Appellant)
1 February 2019 (written submissions in reply of Respondent)
WORKERS' COMPENSATION – APPEALAGAINST DECISION – psychological injury arising out of employment – exacerbation of Asperger's Condition (Autism Spectrum Disorder) – Appellant complaint of unprofessional conduct by manager – whether full account of events was provided to medical practitioners – whether events occurred in the manner described – whether employment major significant contributing factor – whether injury excluded from s 32 due to reasonable management action
Workers' Compensation and Rehabilitation Act 2003
Adams v Simon Blackwood (Workers’ Compensation Regulator)  QIRC 055
Church v Simon Blackwood (Workers' Compensation Regulator)  ICQ 31.
Misevski v Q-COMP  ICQ 2 (C/2009/29)
Hardy v Simon Blackwood (Workers' Compensation Regulator)  ICQ 027
Mr S Truffet, the appellant, in person.
Mr S Gray, Counsel, directly instructed by Ms S Young of Workers' Compensation Regulator.
Reasons for Decision
- On the evening of 27 March 2018, Dr David Truffet resigned his employment from Esri Australia after visiting the house of his Manager, Ms Linda Bengston. Approximately three weeks after resigning his employment, Dr Truffet lodged a Workers’ Compensation claim with WorkCover for stress-related ill-health which he maintains arose in the course of his employment with Esri.
- Dr Truffet’s application for compensation under the Workers Compensation and Rehabilitation Act 2003 ("the Act") in respect of a psychological injury, claimed to have developed in the course of his employment as an Applicant Support Engineer with Esri Australia, was rejected by WorkCover on 30 May 2017.
- Dr Truffet applied for a review of the decision via the Regulator. On 4 August, 2017, the Workers' Compensation Regulator confirmed WorkCover's decision and determined the claim should also be rejected.
- In this matter, Dr Truffet appeals the decision of the Workers' Compensation Regulator ("the Respondent").
- The appeal is made under s 550 of the Act.
Appeal Details and Issues To Be Determined
- At the commencement of this Appeal, Dr Truffet maintained his psychological injury, (an exacerbation of his Asperger’s condition/Autism Spectrum Disorder) arose out of, or in the course of, his employment with Esri Australia predominantly as a result of his interactions with his Manager, Ms Linda Bengston and a series of events or stressors which occurred as a result of those interactions, namely:
- (a)Lack of consideration by employer for Dr Truffet’s Autism Spectrum Disorder/Asperger’s condition, from August 2016;
- (b)Underutilisation, from August 2016;
- (c)Professional isolation, from August 2016;
- (d)Prevented from undertaking role, from August 2016; and
- (e)Manager’s divulgence of her personal life and workplace bullying, from November/December 2015.
- The Respondent does not dispute Dr Truffet is a worker within the meaning of the Act and that he suffered a personal injury but maintains Dr Truffet’s employment is not the major significant contributing factor to his injury.
- In the event the Commission determines Dr Truffet has suffered an injury, which arose out of, or in the course of his employment and it is also determined his employment is the major significant contributing factor to his injury, then the Respondent maintains the injury is excluded by the reasonable management action provisions contained within the Act.
- The appeal to the Commission is conducted by way of a hearing de novo.
- My role in this matter is to determine:
- (i)Did the exacerbation of Dr Truffet’s Asperger's condition (Autism Spectrum Disorder (ASD)) arise out of, or in the course of, his employment? and
- (ii)If Dr Truffet did suffer an exacerbation of ASD – which arose out of, or in the course of, his employment, was his employment with Esri the major significant contributing factor to the injury?
- If the answer to (ii) is 'yes', then is the injury not compensable by virtue of it arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with his employment?
- The relevant part of the legislation is set out below:
32 Meaning of injury
- (1)An injury is personal injury arising out of, or in the course of, employment if—
- (a)for an injury other than a psychiatric or psychological disorder—the employment is a significant contributing factor to the injury; or
- (b)for a psychiatric or psychological disorder—the employment is the major significant contributing factor to the injury.
- (5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances—
- (a)reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
- (b)the worker's expectation or perception of reasonable management action being taken against the worker;
- (c)action by the Regulator or an insurer in connection with the worker's application for compensation.
Examples of actions that may be reasonable management action taken in a reasonable way—
- action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
- a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment
- For the Appellant:
- Dr David Truffet, Senior Engineer, Esri Australia
- Mr Brett Bundock, CEO – Esri Australia
- Ms Cheralyn Borzillo – Administration Manager, Esri Australia
- Dr Christopher Podagiel – General Practitioner
- Dr David Zimmerman – Clinical Psychologist, Minds & Hearts
- For the Respondent:
- Ms Linda Bengston – Former Manager, Esri Australia
- Ms Amanda Clauson – Human Resources Manager, Esri Australia
- Mr Mark Smith – Techincal Support and Training Analyst, Esri Australia
- Dr Truffet commenced employment with Esri Australia in 2010 as a senior professional consultant. In February 2013, he took a break from his employment at Esri due to ongoing health difficulties related to his marriage breakdown. He returned to work at Esri as a software engineer, albeit on a reduced hours arrangement from 4 August 2014.
- Dr Truffet resigned his employment from Esri on the evening of 27 March 2017, after attending the house of his Manager, Ms Linda Bengston on the same evening. In the wake of his visit to Ms Bengston’s home, the police laid stalking charges against Dr
Truffet. Dr Truffet maintains he resigned his employment in the hope Ms Bengston would not pursue the stalking charges.
- At the time Dr Truffet sustained the injury which is the subject of this Appeal (mid- March 2017), he was employed as Senior Engineer - Application Support, within the Esri Customer Care Support Team, providing support to clients in Geographical Information Systems (GIS).
- At the time, the three core divisions within the Esri Customer Care Support Team included:
- (1)Hosted Services;
- (2)Technical Support; and
- (3)Application Support, which provides support for customer applications built by Esri.
- Dr Truffet commenced in the role of Senior Engineer – Application Support, within the Customer Care Support team from on or around February 2016. He had previously held the role of Senior Consultant within the Professional Services team at Esri but had been approached by Ms Bengston (the Manager of Customer Care) in late 2015 about taking on the Senior Engineer role within the Customer Care Division, after Dr Truffet had been identified as possessing a skill set which might assist the team.
- Dr Truffet’s special area of interest was GIS. There appears to be no question that he was highly competent in the area, well regarded amongst several of his colleagues and a valued resource within Esri Australia.
- According to Mr Smith, his line manager, Dr Truffet’s output was ‘really good’. He explained how Dr Truffet was able to pick up an issue associated with Esri's GIS technology and look at the problem with "a different set of eyes".
- References provided by Dr Truffet during the appeal proceedings from representatives of the Harvard-Smithsonian Centre for Astrophysics and other academic institutions, highlighted Dr Truffet’s significantly above average intelligence, and his outstanding abilities in algorithmic problem solving within the field of computer science.
What was Dr Truffet’s role in the Customer Care Team?
- In this matter, there is some contention around how Dr Truffet’s new role would operate within the Customer Care team, particularly in so far as it interacted with the different areas within the team, including Hosted Services.
- For example, Dr Truffet’s evidence is that he accepted the role with an expectation he would be working closely with the Hosted Services team, a separate area within the Customer Care division, involved in developing new cloud infrastructure. Ms Bengston maintains Dr Truffet’s role was established primarily to resolve application issues for
customer solutions but that he would be required to work collaboratively with Hosted Services from time to time.
- According to his new position description, Dr Truffet was required to work with the Application Support Lead to provide technical and analytical leadership in the Technical Support team and assist in the development of procedures and processes for Application Support agreements. Key responsibilities involved troubleshooting, management of incidents, analysis of systems and testing fixes for custom GIS applications.
- A status adjustment form provided to the Commission noted the key benefit of transferring Dr Truffet from his role in Project Services to Customer Care as being:
… to improve the problem-solving capability of our Application Support team, thereby reducing the need to escalate technical issues to the Professional Services group who carry profitability and utilization targets. 
- Ms Bengston accepted there was some opportunity for collaboration between Dr Truffet and Cloud Services / Hosted Services from time to time, but maintained she did not hold a discussion with Dr Truffet which suggested the new role would predominantly involve working with or in the Hosted Services team.
- Likewise, Mr Smith’s evidence was that Dr Truffet provided application support across a range of areas which included Hosted Services.
- Notwithstanding Dr Truffet’s evidence around his own expectations about accepting the role with a view to working more closely with Hosted Services and cloud-based infrastructure projects, there is little evidence before the Commission that supports the submission that he was engaged primarily for this reason. It is apparent there were other areas within the Customer Care group that Dr Truffet was also required to assist.
- Although it is clear Dr Truffet expressed an interest to Ms Bengston in working more closely with the Hosted Services team and I accept he did provide support to the Hosted Services team with various projects from February 2015 until March 2017, I am satisfied, having regard to his position description and status adjustment form, that at the time Dr Truffet accepted the new role of Senior Engineer – Application Support, it was with an awareness the role would largely involve resolving complex technical issues in software solutions across the group, rather than predominantly with Hosted Services.
To what extent did Dr Truffet disclose his Asperger's Condition to Esri Management?
- According to psychologist, Dr David Zimmerman, Dr Truffet has been diagnosed with Autism Spectrum Disorder (ASD), Level 1, (also known as Asperger’s Syndrome). As best I understand it, Dr Truffet was diagnosed with the condition when he was a teenager.
- There is some dispute about the extent of the information Dr Truffet provided to Ms Bengston in relation to the nature and severity of his Asperger's condition and the level of support he would require when they first discussed his transfer into the new role.
- In his evidence to the Commission, Dr Truffet maintained he told Ms Bengston that if he was not correctly managed, he could enter into a state where "I’d eventually crash and burn in a spectacularly fiery train wreck and lose the ability to work for a prolonged period of time".
- Ms Bengston denied Dr Truffet described his Asperger’s condition in such a manner during their initial discussions. She acknowledged Dr Truffet disclosed that he had Asperger’s all his life and that it was well managed but maintained the primary focus of their discussions revolved around his request for additional support in the areas of writing and interaction with clients during periods of intense work activity.
- According to Ms Bengston, Dr Truffet asked for extra support with the review and finalisation of written documents to ensure they were at an acceptable standard for distribution or dissemination to Esri clients and other stakeholders. Dr Truffet also requested additional support when he was working alone on a project. He expressed a preference for working as part of a team in circumstances where he could become very focused or invested in problem solving and needed to rest or reset after a period of sustained concentration.
- From these discussions, Ms Bengston said she also understood that Esri would need to ensure a different team member was made available to communicate with customers or other stakeholders during stressful or high activity periods, which would take pressure off Dr Truffet and allow him to focus on the technical problem he was trying to solve.
- Ms Bengston’s evidence was that she took steps to raise Dr Truffet’s requirements with his proposed line manager, Mr Smith and another functional team leader, Ms Meenal Chabra, to ensure Dr Truffet’s requirements could be accommodated. Her evidence was that both Mr Smith and Ms Chabra were willing to accommodate Dr Truffet’s requests for extra support.
- Ms Bengston told the Commission she was careful about how she communicated the information Dr Truffet had shared with her about his Asperger’s condition to other Esri staff, noting he was well regarded within Esri, had worked at the company for a number of years without incident, and that she wanted to treat the information he had shared with her in a sensitive and careful manner.
- The evidence of Dr Truffet’s line manager, Mr Smith, in respect of his awareness of Dr Truffet’s condition and/or any special requirements largely accorded, in my view, with Ms Bengston’s account.
- That is, although he could not specifically recall when he was advised that Dr Truffet had Asperger’s, he was aware of his requirement for additional support in several areas,
including his written communication and interaction with clients. For example, Mr Smith was aware of the need to give Dr Truffet some time to essentially ‘re-set’ after a period of intense problem solving. He explained that Dr Truffet would get very attached to a project, often investing a lot of his energy into resolving an issue.
- Although I accept Dr Truffet may well have provided further information to Mr Smith and Ms Bengston in respect of other characteristics or symptoms of his ASD/ Asperger’s in the period after 1 August 2016, I am satisfied the extent of his disclosure to Ms Bengston and his requests for additional support, at the time he transferred into the Customer Care team in early February 2016, were limited to the factors nominated by both Ms Bengston and Mr Smith in their evidence.
- I am also satisfied, that Dr Truffet did not disclose his Asperger’s condition to Esri management, in any meaningful sense, until after he commenced discussions with Ms Bengston about transferring to his new role in the Customer Care Team.
The Events (Stressors)
- The events or stressors which Dr Truffet argued have caused or contributed to the exacerbation of his Asperger's condition are examined below.
- In many respects, the nominated stressors or events are interconnected. Dr Truffet maintains these events occurred or arose in an environment where Ms Bengston failed to recognize his increasing stress levels after he was re-located to a noisy area within the Esri Brisbane office (during a whole-of-office reshuffle), which proved to be inadequate for his needs, resulting in sensory overload and underutilisation.
- Separately, Dr Truffet submits Ms Bengston, on reflection, regularly over-shared aspects of her personal life and her own experiences with workplace bullying, during coffee meetings.
- According to Dr Truffet, the interaction led to further confusion and stress. At times he felt he was also prevented or blocked from raising his own concerns regarding his lack of utilisation and perceived isolation within the Customer Care team, due to Ms Bengston’s tendency to dominate the conversation with commentary about her own personal relationships and challenges.
Stressor One - Lack of consideration by employer for Dr Truffet’s Asperger's condition, from August 2016
- Having regard to the Statement of Facts and Contentions in this matter as well as further clarification provided by Dr Truffet about his nominated stressors in the lead up to the Appeal, my understanding is that Stressor One predominantly revolves around Dr Truffet’s concerns about where he was seated in the Esri office, and a failure by Ms Bengston and Mr Smith to respond to his requests to seat him in his ‘Sheldon’s Spot’ within the Hosted Services team.
- 'Sheldon's Spot' was a term used throughout the proceedings by Dr Truffet to highlight a seat or an area in the office he considered would be most suited to his needs, given his Asperger’s condition. He considered that Esri Management had failed to give the relevant managers adequate training to assist them in their understanding as to how best to manage an employee with Asperger’s.
- Dr Truffet maintained that as part of an office re-shuffle in mid-2016, Ms Bengston moved him to a desk in the loudest and busiest part of the Esri Brisbane office. He submits he experienced frequent sensory overload thereafter, to which he was particularly vulnerable as a result of his Asperger’s Condition.
- As the proceedings developed, Dr Truffet also appeared to be arguing that it was unreasonable for Ms Bengston and/or Mr Smith to deny his request to sit with Hosted Services in circumstances where his role was designed to support the Hosted Services group and where he too, would benefit in a professional sense from additional exposure to the technological issues the group were attempting to resolve, given his special interest in GIS.
- The floor on which both Dr Truffet and Ms Bengston were located consisted of five integrated, open-plan office spaces, as well as some separate conference rooms, staff and café/lunch rooms, bathroom and kitchen facilities.
- In his earlier role with Professional Services, Dr Truffet spent a reasonable proportion of his working time often attending the offices of clients outside of the Esri office, which meant that he didn’t have a ‘fixed’ desk. When returning to the Esri office, he would request and be allocated a touchdown or hot desk. This would involve Dr Truffet contacting the receptionist or office administrator who would then allocate an available desk to him.
- The allocated desk and its location would change, to some extent, depending on availability and the seniority of staff who were making the request. I note there was no evidence before the Commission to indicate Dr Truffet had previously raised concerns with his employer about the location of his seating, prior to the events after August 2016, despite sitting in different areas of the office from time to time.
- On 4 February 2016, Dr Truffet emailed Ms Bengston requesting to sit closer to her team and the people he would be working with in his new role.
- Ms Bengston forwarded Dr Truffet’s email to his direct manager, Mr Mark Smith (who was based in the Adelaide office), the following day seeking his input regarding where Dr Truffet should be seating, noting:
Could you pls advise if you have any views on this? Seating in BNE is still a hassle, there are no permanent desks in my area that are free – only touch down desks and even those are busy.
My first view is that I don’t mind where David sits, just want him to be happy, but I’d prefer to have your input (happy for you to check Meenal’s before taking any action).
- A short time later, Mr Smith responded to Ms Bengston noting:
I’m not too phased with where he sits. I see reason to have him away from the team (I could see too many deep and technical conversations that aren’t essential if he was to sit with Will and Sateesh) but also good reason for him to be sitting with them because he’d have a lot to offer Will and Sateesh. It makes sense for him to take Andrew Hughes’ spot in with Will and Sateesh though so that would be my suggestion (but not essential).
- In any event, having transferred into the Customer Care Team in early February 2016, it appears Dr Truffet was, in due course, seated at a wave desk in an area called Office Space 4. The area was relatively large and accommodated employees from various departments and divisions including the Hosted Services division which formed part of Ms Bengston’s Customer Care team.
- From at least early February 2016 to early July 2016, Dr Truffet remained at the wave desk in Office Space 4, where he interacted with other employees, including some members of the Hosted Services team who were sitting about three or four desks away from the wave desks.
- On or around 6 July 2016, a Human Resources Coordinator, Ms Amelia Coleman confirmed the timing for a whole of office reshuffle as being 8 July 2016.
- A group of line Managers, including Ms Bengston and Mr Smith, were forwarded a pre- populated office seating plan, about which they had previously given some feedback in terms of seating locations for their individual team members.
- Ms Bengston told the Commission that the rationale for the reshuffle was that Esri wanted, as much as possible, for employees to be seated more closely within their functional teams. Her evidence was that on receiving the new seating allocation she was able to swap or move employees to spare desks within the areas her own team occupied, but that she had to seek permission from a more senior manager if an employee was unhappy with the new allocation and wanted to move entirely into another area.
- The proposed reshuffle resulted in Ms Bengston’s Customer Care group and various teams within the division, being allocated to Office Spaces 2 and 3, with some overlap occurring. That is, some employees from other teams (i.e. marketing) had been allocated desks within Office Space 3.
- In any work office there are desk locations which prove to be more popular with staff due to their location, proximity to bathrooms, exposure to noise, and level of comfort. It seems the Esri Brisbane office was no exception. For example, there were areas within Office Spaces 1 and 4 which were further away from bathroom and kitchen amenities and attracted less foot traffic which some staff found more attractive.
- Office Spaces 2 and 3 were quite close to the kitchen and bathroom facilities and were, by all accounts, a lot noisier than the previous areas where many team members had been
seated. Mr Smith told the Commission certain members of his team were not overly happy with the move. He also explained how one member of his team held genuine concerns about microwave radiation in circumstances where his proposed allocated desk was quite close to the kitchen.
- Mr Smith explained that he had some input into the seating allocation before the seating plan was finalised. He determined to place employees who were regularly on the phone away from the kitchen noise. Where possible, he also attempted to cluster team members with similar skill sets into the same area.
- Although it is not clear by who, how or when he was advised, Dr Truffet’s evidence was that he was told in the lead-up to the July 2016 reshuffle that he would be seated at the height adjustable desk with the Hosted Services team in Office Space 3. He maintains that on the actual day of the move he was told that the desk he was expecting, was in fact being allocated to ‘Vince’. In circumstances where he had Asperger’s and struggled with sudden change, Dr Truffet maintains he found the experience distressing and unsettling.
- On Friday, 8 July 2016, Dr Truffet sent an email to Ms Bengston inquiring as to where the other spare desks within the Customer Service Team were located on the plan.
- Dr Truffet then requested to be moved to an alternate desk, OS2-10 on the plan. Ms Bengston told the Commission she considered Dr Truffet’s request and reached a conclusion the original desk allocated to Dr Truffet on the plan wasn’t ideal and was therefore agreeable to a change.
- The change resulted in Dr Truffet being seated with his back to passing employees and provided some relief (albeit limited, according to Dr Truffet) from passing foot traffic and noise emanating from the kitchen. Another employee (who wasn’t a member of the Customer Care team) was swapped out of the seat to accommodate the change.
- Dr Truffet maintains that around this time it was suggested he could move to ‘Vince’s’ height adjustable desk in the Hosted Services area where Ms Bengston sat, once Vince had moved on.
- Ms Bengston’s evidence is that in the event Dr Truffet wasn’t happy with the move, she had identified some other seats in Office Space 2 (not in Hosted Services) as a fallback position. Around this period, she recalled Dr Truffet was performing well. Having agreed to the move to OS-10, she didn’t get a sense that the reshuffle was unduly creating a lot of stress for Dr Truffet.
- Approximately a month later, on or around 11 August, Dr Truffet’s Manager, Mr Mark Smith, was reminding Dr Truffet about completing his outstanding time sheets. Mr Smith confirmed there wasn’t anything overly controversial about the follow-up on the time-sheets. There were some team members who occasionally forgot and had to be reminded, but the discussion with Dr Truffet about timesheets was in no way a reflection on his work performance at the time.
- During the discussions about the timesheets, Dr Truffet raised a concern with Mr Smith about where he was seated. Mr Smith recalled Dr Truffet explaining to him that he would overhear conversations around the kitchen area, whether work or personal, which would attract his attention. Although Mr Smith wasn’t aware if Dr Truffet ever acted on his desire to assist others in the office, his understanding from their discussions was that Dr Truffet would become invested in solving problems that might arise out the conversations he was overhearing.
- In a further email on the same day, Dr Truffet sent Mr Smith some information on "sensory and social overload within the world of an Asperger", in so far as it related to his concerns about his seat in the office.
- The information provided to Mr Smith by Dr Truffet included a link to a video of a student with Asperger's discussing her needs while studying at university. Mr Smith told the Commission that although he considered there were some similarities in the issues the student was raising, in so far as they related to the distractions Dr Truffet was experiencing, he was of the view there were also differences given the student was discussing her experiences in the lecture hall environment which was somewhat different to an open-plan office environment.
- Dr Truffet’s email to Mr Smith is replicated below:
Probably a little more Information on sensory and social overload within the world of an Asperger.
One issue many Asperger's have is separating the troubles of others in the group from ones own. (another problem with Asperger Is that they are an open book to those they trust)
We have a very high pain threshold for our own pain, but feel the pain of others acutely, hence I frequently put myself in harms way, if it means shielding a friend from harm, and reducing the total harm felt by the group as a whole.
This account is a completely normal and understandable reaction (from an Asperger point of view):
(relevant quote at end of email)
For myself social Interactions are taxing, my advantage talking with both yourself and Meenal via Skype is that there is no body language or facile expressions I need interpret or emulate. Moreover there will be a clean end to the social interaction once the call hangs up.
The old seating arraignment, being within earshot of Hosted Services, I could listen in as an outsider (observer) and step in to assist when I could add value.
With Greg's seat being at the diagonally opposite end of the building when I got into an unfocused state I could walk over to Greg and ask him if he had any problems needing assistance with. And let his focus/attention guide me and when I hit my social interaction limits, I could simply say I'd go and search my email archive and walk away and social interaction was over.
I'd also do a similar thing with Will.
Most interactions being one on one as I can't follow the body language/social queues of a larger group. (This is why the lady in the youtube video needed to sit on the end of a row (at most one person))
Or over a coffee, as there is a clear end to the social interaction.
But new seating arraignment, everyone else's problems become mine and I forget my own, and there is no clean boundaries to start (and more importantly) end of social interactions.
The coffee machine adds to social/sensory load.
Tomorrow I'll have a quiet wander around to see if I can find a vacant (as opposed to occupied) "Sheldon's spot".
Anyway quote from above web page, below, to me from my own experiences it makes perfect sense that her concern for the driver's pain and distress was more important than her own.
(Also shows the lack of filters on blocking out sounds, most people would be focused on pain and laying face down in the road unable to stand, as opposed to searching out the person in more need of help and support than themselves)
Quote from above web page:
I was hit by a pickup truck on the way home from school. 
- On the same day, Mr Smith wrote to Ms Bengston communicating Dr Truffet’s concerns about his current seating arrangement. It is clear from the email and also his evidence to the Commission, that Mr Smith held a genuine regard for Dr Truffet, took time to consider Dr Truffet’s concerns about his location in the office (including the sensory and social overload he maintains he was experiencing), and was motivated to find a way to address Dr Truffet’s complaint.
- There is some value in replicating the email authored by Mr Smith, as it provides an insight into his understanding of Dr Truffet’s concerns with his allocated desk in mid- August 2016:
I had an interesting chat with David today. I think we can get the timesheet side covered. I’ve simplified it somewhat for him and will work with him to try and get a routine going. In terms of seating he had a chat and shared a video with me of one similar to himself which is worth a listen (he’s cut it to the start at the point where she starts to talk on location and distractions (hyperlink here). I believe him and how he feels these distractions and we’ve managed to put him in the worst
spot for them. But on the other hand, he works best with others and feeding off of others. I think its equally distracting but a valuable distraction where he can contribute, plus they’re not constant distractions like being next to the kitchen. He mentioned that his timesheet tardiness probably coincides directly with the move. I don’t think it does but its clearly hitting him hard.
We discussed options. He described himself as a Sheldon from Big Bang Theory who has his spot on the couch and struggles to function if he can't be in his spot. That actually said to me that at least some of this is the resistance to change. He's been eying off the tall desks over by BD and IS. I asked on the PS area and surprisingly he didn't jump on that, but he did like sitting in with your hosted guys. I talked on reconfiguring the support space but get the feeling that won't make a difference for him. So I'm not sure we've really got a solution without giving him free reign to find his spot, and I think it's somewhat justified as we would if he had some physical disability that warrants it but I got the feeling that pinning him to the spot would be detrimental to his health/sanity and that visits to quieter areas would provide little release
He definitely doesn't want to rock the boat but did mention having a chat with Amanda on It. So I reckon I can get the timesheet part sorted…
- Although Mr Smith told the Commission some consideration was given as to whether partitions could be erected or work-stations reconfigured to provide greater privacy, in the end, he and Dr Truffet held a discussion about moving to a more suitable seating location.
- According to a series of emails and instant messages provided to the Commission, the discussions between Dr Truffet and Mr Smith were limited to a consideration of available desks in Office Space 5, as well as Office Space 4, which would have involved a return to the area Dr Truffet was seated in, prior to the reshuffle.
- Ms Smith recalled Dr Truffet wasn’t overly keen on a desk in the Professional Services area despite it being, in his view, a very quiet area. Instead, he expressed an interest in being seated with the Hosted Services team.
- Although Dr Truffet’s evidence is that a seat within the Hosted Services was essentially his ‘Sheldon’s Spot’ and he had communicated a preference to be located near or within earshot of Hosted Services with a view to keeping himself technically engaged, Mr Smith's position was that it wasn’t an appropriate environment for Dr Truffet.
- Dr Truffet maintains that during those discussions where he expressed an interest in sitting in the Hosted Services area, Mr Smith advised him of the temporary nature of Vince’s tenure in Hosted Services, but then went on to say that if Dr Truffet used his Asperger’s condition to try and unseat Vince, it would be seen as a political manoeuvre and it would not only be denied by Ms Bengston, but would also be seen as rocking the boat.
- Mr Smith’s evidence is that he communicated his views about Hosted Services not being the right environment to Dr Truffet during their discussions. Mr Smith told the Commission the Hosted Services area was quite a thoroughfare in that it was located near the female and male toilets, as well as the kitchen. He explained how he had a lot of clever people in his team and that other staff within Esri would take the opportunity to ask a question when they were walking past to the kitchen or other areas. Mr Smith was of the view that a move to the Hosted Services area would have not assisted in rectifying the distractions Dr Truffet had originally highlighted as reasons why he wanted to move away from the kitchen area in the first place.
- Likewise, Ms Bengston who also sat with the Hosted Services team, told the Commission the area was almost as loud, in her view, as the problematic desks Dr Truffet had complained about near the kitchen in Office Space 2. She recalled agreeing to move Dr Truffet in July 2016, in response to his concerns about the kitchen noise and the coffee machine. Ms Bengston’s evidence was that Hosted Services was also a chatty area, so noise was also a big problem.
- That aside, her evidence is that she became concerned when she read Mr Smith’s email and took immediate steps to seek approval from her direct Manager, Jeff Robinson for Dr Truffet to move desks to a more suitable location.
- On 12 August 2016, Mr Smith commenced an instant message conversation with Dr Truffet where they discussed seating options. Again, there is some value in replicating the conversation below:
Mark Smith 10:19 AM:
Just working on seating plans. Would your preference be to sit on the high desks over near BD or the hotdesks over on the PS side of the building?
David Truffet 10:24 AM:
David Truffet 10:24 AM:
high desk in BD
Mark Smith 10:24 AM:
OK I think that's my preference too
David Truffet 10:24 AM:
There seems to be a few spare
and my high os the simplest explanation for the move :-) (as opposed to Sheldon's spot)
David Truffet 10:26 AM:
Mark Smith 10:27 AM:
And I'm looking at having you involved in more technical discussions to keep your juices flowing and contributing.
I'll lean on Meenal for that more when she gets back but it might be regular incident review meetings with Will and Greg (when he's back from leave). And will talk with Linda on how to best keep you involved and active with hosted
David Truffet 10:28 AM:
longer term it would be good to be within earshot of Hosted Services as sometimes ...
Mark Smith 10:28 AM:
I'm confident I'll get the all clear on the desk move though
David Truffet 10:28 AM:
looks like we were typing similar things
David Truffet 10:30 AM:
Also thanks for moving things around, sometimes Asperger can be very difficult to place in an organisation or floor plan.
Mark Smith 10:30 AM:
I don't think hosted will be moving in a hurry and I don't think that's the right environment so I'm thinking that we move those discussions to you
David Truffet 10:30 AM:
no rush, will settle in to higher desk over at BD and see how things go.
Mark Smith 10:42 AM:
dont move just yet as I haven't got the approvals but we've got Jeffs backing so I'm confident they'll go through.
Will hope to get the alt clear by the end of the day
David Truffet 10:42 AM:
happy to wait:-}
11:04 AM Connected to David Truffet ([email protected]).
- Ms Bengston recalled going up to the next floor to speak to Mr Robinson about Dr Truffet. On hearing about Dr Truffet’s concerns and his Asperger's, her recollection was that Mr Robinson immediately suggested she allow him to choose between a desk in Office Space 4 and Office Space 5.
- Although she acknowledged it was necessary for Dr Truffet to walk a bit further to visit employees in the Customer Care team, Ms Bengston was of the understanding the new spot addressed his needs. Further, both she and Mr Smith held the view it was not essential for Dr Truffet to physically sit with members of Hosted Services to undertake his work.
- Mr Smith highlighted that he had team members and clients located all over Australia, but it was still possible for work to be undertaken even if they weren’t physically located in the same area, particularly given the nature of the IT work they undertook.
- On 1 February 2017, Dr Truffet sent an email to Ms Bengston with the subject 'utilisation' noting that he considered he was "a little bit isolated from hosted services / the customers they support". Dr Truffet requested that he "borrow Matt’s desk while he is not in Brisbane" and suggested he might be able to better assist the Hosted Services team members if he was sitting in the area.
- Ms Bengston responded about an hour later:
This is something we should revisit in the future, but not right now. The tall desk in our area is still occupied by Vince, and I’m reluctant to move you to a less suitable, lower desk after we sought special dispensation to have you seated at the high desk area for ergonomic (and acoustic) reasons. It also gets very noisy in this section, which was an issue when you were located next to Greg.
My main issue is that HS team is currently super-stretched to the point that we are re-prioritising urgent operational tasks multiple times in a day, and I’m concerned think that adding a new person to the mix right now, particularly someone who will have legitimate questions and suggestions for the guys, may add a layer of overhead that they can’t sustain at the moment. They need a specific skillset, and someone who can take tasks and tick them off the list right now.
The trigger point for revisiting this arrangement is related Cloud Manager – we want to open up access for specific Support personnel (like yourself) to give them the ability to assist with support of the customer environments.
My best guess is that this will change around late March. I’ll certainly keep this offer in mind – thank you!
- Ms Bengston explained to the Commission that there were also other reasons why she did not think a move into Matt’s desk within Hosted Services would be a good fit for Dr Truffet around this period. These included the noise levels and the generally distracting nature of the section.
- She also noted that Dr Truffet had other responsibilities with Esri's Application support team and she wanted to ensure he didn’t become distracted by the activities going on in the Hosted Services area. Likewise, it seems Ms Bengston did not want Dr Truffet to distract the team in circumstances where both she and Mr Smith considered he had a
tendency to get involved in deep and technical discussions with the Hosted Services team members which may not have always been necessary.
- Aside from not being able to identify a sensible reason for the move, it seems there was also a question in Ms Bengston’s mind, by this stage, as to whether Dr Truffet’s real motivation for wanting to sit in the Hosted Services area was to sit closer to her. For example, two weeks prior to the request to move to Hosted Services, Dr Truffet sent Ms Bengston the following text:
Dear Linda, We have known each other for more than 2 years now, and feel relaxed and at peace in each other’s company in a way we have probably not felt for many years. Given this I would like to expand our topics of converstion….so if you see a movie, concert, sporting event etc.. you would like to see please let me know. 
- Ms Bengston did not respond to the text message. In her evidence, in response to questions about Dr Truffet’s request to move into Hosted Services, she said, "I just felt uncomfortable in some way around that…it was a vague feeling, but it just didn’t feel right at that point."
Conclusions – Stressor One: Lack of consideration for Asperger’s Condition
- Dr Truffet maintains Ms Bengston’s repeated failure to agree to his request to sit with Hosted Services (his ‘Sheldon’s Spot’) has resulted in sensory and social overload, leaving him feeling isolated and underutilised, which has, in turn, contributed to rising stress levels and the exacerbation of his Asperger’s condition.
- Ms Bengston’s evidence is that she considered the seating matter had been resolved in August 2016 after Dr Truffet moved to the tall desk in Business Development. Likewise, Mr Smith confirmed that Dr Truffet did not raise anything specific about his desk location after August 2016, other than his occasional comments about the tall desk within the Hosted Services area.
- I have some difficulty accepting Mr Smith intimated Dr Truffet may be able to move into Hosted Services at a later date, in circumstances where he clearly messaged Dr Truffet on 12 August 2016, noting:
I don't think hosted will be moving in a hurry and I don't think that's the right environment so I'm thinking that we move those discussions to you. 
- Having regard to the evidence of both managers as well as Dr Truffet’s account (which was somewhat vague and not always consistent) in terms of exactly when he raised further concerns about his seating between 12 August 2016 and 1 February 2017, in addition to the absence of any written query or discussion about seating in the large number of emails, texts and instant messages provided to the Commission, I accept that a request to move to Hosted Services was not raised again by Dr Truffet, in any meaningful sense, with Ms Bengston or Mr Smith, until his email of 1 February 2017.
- Dr Truffet may well have made a comment to Ms Borzillo about moving into Hosted Services after August 2016, however Ms Borzillo, as the office receptionist, had limited (if any) authority to agree to such a move, without seeking the input of Ms Bengston and Mr Smith. Likewise, Dr Truffet may well have made a passing reference to Mr Smith about sitting in the high desk in Hosted Services from time to time, but there is no evidence to support the position that he was advised he would be moving into the area at some point in the future.
- In any event, ‘Vince’ continued to remain at his ‘tall desk’ in Hosted Services at least until February 2017, if not beyond. Likewise, even though ‘Matt’ moved to the Cairns office in early 2017, I am satisfied both Ms Bengston and Mr Smith at various times had reasonably determined that it was neither suitable nor necessary for Dr Truffet to sit within the Hosted Services team for all the reasons touched on above.
- In August 2016, Mr Smith took Dr Truffet’s concerns about his seating along with the information he had forwarded about his Asperger’s condition quite seriously. Likewise, I accept Ms Bengston was motivated to try and address Dr Truffet’s concerns in circumstances where she immediately contacted her own Manager and sought permission for Dr Truffet to move to a quieter area of the office in mid-August 2016 within 48 hours of having become aware Dr Truffet wasn’t happy with his seating arrangements.
- There is no question Ms Bengston and/or Mr Smith promptly agreed to move Dr Truffet not once, but twice (in July 2016 and August 2016) after considering his concerns about sensory and social overload.
- Although I accept Dr Truffet communicated that his preference was to move to the Hosted Services area in August 2016, the evidence before the Commission suggests there were several locations within the office where Dr Truffet could have been seated, which addressed the issues he had previously raised.
- Having been told by Dr Truffet that he had struggled with the sensory and social overload that came with sitting in Office Space 2, while sitting near the kitchen in July and August 2016, Ms Bengston and Mr Smith reasonably concluded in August 2017 that a seat in the Hosted Services area would also not be the right environment, given its close proximity to the kitchen and toilet areas as well as the extent of the noise and chatter in the area.
- It wasn’t until the Appeal proceedings that Dr Truffet developed, in any meaningful way, an expanded argument focusing on the benefits that would accrue to himself and Esri by sitting in the Hosted Services area. Essentially, Dr Truffet argued that the social or sensory distractions he had previously complained about, would have been over-ridden by the benefits of being seated in Hosted Services. For example, Dr Truffet considered his utilisation would have increased, along with his engagement given he would have been able to better focus on his special area of interest.
- In my view, it seems entirely sensible and reasonable that both Ms Bengston and Mr Smith, together and separately in the period between August 2016 until March 2017, would have concluded that a move to the noisy Hosted Services area, close to the kitchen, bathrooms and high levels of foot-traffic would not have been ideal given the issues Dr Truffet had previously raised.
- There is limited (if any) evidence in these proceedings, other than Dr Truffet’s own personal views and preferences, that support the position that he would have been better utilised and not as isolated (in a professional, rather than a physical sense) in the event he was co-located with the Hosted Services team. In any event, I accept it was not necessary for Dr Truffet to sit within Hosted Services in order to undertake his role. It is also clear that he had responsibilities that extended to other teams within the Customer Care Division, beyond Hosted Services.
- It is also worth noting that prior to moving into the Customer Care team, Dr Truffet worked in roles within Esri that resulted in him having to regularly sit in hot desks or spare desks within the office, due to the consulting nature of his role. The location of the desks would change from time to time. As best I understand it, Dr Truffet worked in different areas of the Brisbane Esri office without any issue during this period.
- On balance, I am satisfied that both Mr Smith and Ms Bengston took the time to consider Dr Truffet’s request to move into his ‘Sheldon’s Spot’ within Hosted Services when it was raised by him both in August 2016 and February 2017 but accept there were valid and genuine reasons as to why it was not an ideal location. I am also satisfied that Ms Bengston and Mr Smith, had regard to the materials provided by Dr Truffet in so far as they related to his Asperger’s condition and his employment.
- The reason for not placing Dr Truffet in the Hosted Services area extended to legitimate concerns on the part of Ms Bengston and Mr Smith about the potential distractions that may have arisen not just for Dr Truffet, but also for other Hosted Services team members, in circumstances where there was a risk, Dr Truffet would involve himself in technical or other conversations that were not always essential.
- By February 2017 Ms Bengston had also understandably become a little concerned about Dr Truffet’s motivation for sitting in the Hosted Services area in circumstances where he had repeatedly suggested they meet outside of work.
Stressor Two – Underutilisation, from August 2016
- Dr Truffet maintains he undertook limited work in his role with Customer Care in the latter stages of his employment. As best I understand it, he also maintains a failure by Esri management to accede to his request to relocate him to the Hosted Services team resulted in him being underutilised.
- In the latter stages of his employment he made some enquiries about being relocated to Melbourne once his mother’s house was completed in about six months' time. In response, Mr Smith highlighted the importance of Dr Truffet demonstrating the value of a transfer to the organisation.
- During the proceedings, Dr Truffet provided limited, if any, evidence supporting his claim. He did not provide the Commission with any detail as to how he considered he was underutilised.
- Dr Truffet was allocated work from Mr Smith and to a lesser extent, another functional team member, Meenal Chabra. From time to time, Ms Bengston would ask Dr Truffet to assist team members in Hosted Services or other divisions.
- Mr Smith told the Commission Dr Truffet’s role was to provide high end application support and advice to areas within the Customer Care team. Along with his colleagues, Dr Truffet also sourced work from ticketed jobs logged by Esri customers. From time to time, he also provided support to project services. Team members would also approach Dr Truffet for guidance and support when complex problems arose.
- Ms Bengston gave evidence that in addition to supporting and providing assistance to the Customer Care team, Dr Truffet was also able to supplement his work through picking up ticketed jobs logged by Esri customers. It is the case that Dr Truffet would generally assist with the more complex and technical jobs that arose.
- In late March 2017, Dr Truffet contacted his line manager, Mr Smith, by email, inquiring as to whether he saw any value in him spending more time in Melbourne in about six months, once Dr Truffet had finished assisting his mother with a house she was building. In the same email he noted he'd had very little input into the new Hosted Services infrastructure / architecture over the past year.
- On the same day, a few hours later he also sent an email to Ms Bengston inquiring as to when he would be getting involved with Hosted Services. Ms Bengston responded almost immediately noting:
… As soon as the guys are back working on those tasks again…they will submit a ticket to you via support to start scheduling time with you. 
- Mr Smith replied to Dr Truffet's earlier email not long after Dr Truffet received a response from Ms Bengston, noting that he was not against people moving but that the value to the business needed to be present. He reinforced that Dr Truffet's primary role was in Application Support, with him filling in the gaps with support escalation, along with helping out Hosted Services when required and performing work in Professional Services when needed. He then suggested Perth or Canberra could be an option given the nature of the work occurring in the offices.
Conclusions - Stressor Two – Underutilisation, from August 2016
- The request by Dr Truffet to move offices followed very shortly after Ms Bengston declined his repeated requests that the pair meet socially at Southbank out of office hours.
- Ms Bengston explained to Dr Truffet in late February 2017 that it would not be appropriate for them to interact in this way given her position as a Manager and lest it be construed (by Dr Truffet) as a move towards a non-platonic relationship.
- In early February 2017 Ms Bengston also advised Dr Truffet that she was unable to agree to his request to move into the Hosted Services area. In my view, Ms Bengston’s decision
not to agree to Dr Truffet’s request to move to Hosted Services, does not automatically equate to a conclusion that Dr Truffet was underutilised, particularly when he already held an established role.
- There are materials before the Commission that indicate Dr Truffet continued to perform his role as requested.
- A finding that Dr Truffet was underutilised from August 2016 is not reasonably open to the Commission, in circumstances where there is no evidence in these proceedings to support the assertion.
Stressor Three – Professional isolation, from August 2016
- The Statement of Facts and Contentions filed by Dr Truffet in this appeal notes:
The Appellant remained under instruction from the Manager not to assist his colleagues or attend team meetings. The Appellant was restricted access to his autistic special interest (i.e. GIS consulting)…
- In the same document, Dr Truffet maintains Ms Bengston had been denying his requests to move to the desk he required, (his ‘Sheldon’s Spot) to among other things, access more technical work and interact with his colleagues.
- Following an email exchange on 1 February where Dr Truffet requested to move to the Hosted Services area, he maintains he also spoke to Ms Bengston in person where he tried to raise concerns about professional isolation. His evidence is that Ms Bengston only had time to have a meeting over lunch, where she ignored his concerns and raised her own personal matters, which prevented Dr Truffet from raising his concerns about professional isolation and underutilisation.
- On another occasion around 21 March 2017, Dr Truffet maintains he:
…met with Ms Bengston with the intent to request to move interstate, but at the start of the meeting Ms Bengston advised me that Vince would be remaining where he was for at least another 6 months and as such I was required to remain in my seat for at least 6 months+. I enquired as to why she was keeping me so distant and she advised she had already lost her two previous jobs through inappropriate office romances/extra marital affairs and she was determined that she was not going to lose her third the same way and that I (or what I said) reminded her of Luke.
Conclusions – Stressor Three, Professional isolation, from August 2016
- The crux of Dr Truffet’s grievance in so far as is relates to professional isolation is that he was not only underutilised but was also prevented from working more closely with the Hosted Services team and, in turn, his autistic special area of interest.
- During the proceedings, both Dr Truffet and Dr Zimmerman highlighted that a person suffering from Asperger's can benefit from being able to focus on their special area of interest. Dr Truffet’s special area of interest is GIS.
- To be able to determine whether Dr Truffet was professionally isolated from August 2016, it is necessary to understand his role within Esri and the Customer Care team.
- Earlier in this decision, I determined that when Dr Truffet accepted the new role of Senior Engineer – Application Support, it was with an awareness the role would largely involve resolving complex technical issues in software solutions across the Customer Care Team, rather than purely for the Hosted Services division. Likewise, I determined Dr Truffet’s disclosure in terms of his Asperger’s extended predominantly to a request for further support with written documents and correspondence and greater support when communicating with clients during periods of intense problem solving.
- Dr Truffet’s evidence to the Commission was that he considered the opportunity to work closely with the Hosted Services team extremely attractive as he greatly enjoyed solving technical problems. He maintains he told Ms Bengston he was interested in working on the new Cloud Based infrastructure which was being undertaken within the Hosted Services Team.
- I accept Dr Truffet expressed an interest to Ms Bengston in working on the new cloud-based infrastructure projects. It is not uncommon for an employee to accept a role or a transfer with the objective of leveraging that particular role and the experience gained to then transition into another role, but there is a significant difference, in a professional sense, between being attracted to, or excited about, an opportunity that might arise over time to develop and apply one’s skills and experience in an area of special interest, versus being specifically appointed to undertake such a role.
- My findings in respect of this stressor might have been different had Dr Truffet been formally appointed to a role within Hosted Services to work on the cloud-based infrastructure projects but found himself in a position where he was physically located away from his team and overtly prevented from attending meetings or utilising his skills and experience on various projects. However, Dr Truffet held responsibilities that extended across the entire Customer Care Team, not just Hosted Services.
- Dr Truffet previously indicated to Ms Bengston and Mr Smith that he suffered from both sensory and social overload when he was seated in areas where there was too much noise, chatter or foot traffic. Subsequently, it was agreed he would move further away from Office Space 2 into a quieter area. Despite this, Dr Truffet continued to provide technical support when required, across the group. I am not persuaded that he was prevented from engaging with Hosted Services employees or other staff within the group on work-related matters. There are materials before the Commission that demonstrate Dr Truffet continued to be called upon to assist the group with meaningful technical issues between August 2016 until he took leave in March 2017.
- As such, I am unable to accept Dr Truffet’s assertion that he was professionally isolated, particularly after considering the context and circumstances within which he described the isolation.
- Although there was nothing wrong with Dr Truffet aspiring to become more closely involved in the cloud-based projects over time and making inquiries as to when he might expect to become more involved, there was equally nothing unreasonable on Ms Bengston’s part, having appointed Dr Truffet to the senior application support role, in declining Dr Truffet’s request to move to the Hosted Services area in early February 2017 or suggesting that the team was not quite ready for his involvement at that time.
Stressor Four – Prevented from undertaking role, from August 2016
- The Statement of Facts and Contentions filed by Dr Truffet in this appeal notes:
The Appellant remained under instruction from the Manager not to assist his colleagues or attend team meetings. The Appellant was restricted access to his autistic special interest (i.e. GIS consulting).
- He also argues he was prevented from moving back into Professional Services and undertaking a GIS role.
- In an email dated 23 March 2017, Dr Truffet requested Ms Bengston’s support in transferring back to Professional Services, noting:
Over our last coffee meeting one of the main concerns was that you were responsible for managing me.
The only solution apparent to me for this is for me to move out from under your management, so I have asked Mark to look at moving me back into Peter’s (PS) group proper…
I must deeply apologise for bouncing around, hopefully the change in management structure and time out of the office will give the time and distance needed.
Conclusions - Stressor Four, Prevented from undertaking role, from August 2016
- Again, the difficulty I have with this Stressor is that Dr Truffet’s role was to provide high level technical support across the Customer Care team, rather than just to the Hosted Services team. There is no evidence in these proceedings that indicates Dr Truffet was stopped or was prevented from undertaking his role as a Senior Application Support Engineer. Nor was a transfer to another office ruled out in the latter part of his employment.
- Both Mr Smith and Ms Bengston told the Commission that Dr Truffet’s performance was quite good and he was well regarded by his colleagues.
- Other than when he requested to take leave in March 2017, I was unable to locate, within the large number of emails and documents provided to the Commission, any circumstances or communication which indicated Dr Truffet was being actively prevented from undertaking his role or that he was underperforming in his role. If
anything, the evidence indicates Dr Truffet performed his role well and was a valued member of the Customer Care team.
- In the latter stages of his employment, Dr Truffet made inquiries about transferring back to Professional Services and working in a different office. He initially raised the transfer a short time after Ms Bengston declined his requests to meet socially outside of work. During that interaction Mr Bengston also highlighted the difficulties of engaging with a staff member outside of work given she was a manager.
- Mr Smith was not opposed to Dr Truffet transferring to another office, but he was keen for Dr Truffet to demonstrate the value it would deliver to Esri, which is understandable.
- A finding that Dr Truffet was prevented from undertaking his role from August 2016 is not open to the Commission given the lack of evidence in support of this assertion.
Stressor Five - Manager’s divulgence of her personal life, from November/December 2015
- In these proceedings, Dr Truffet has submitted Ms Bengston was using him as a grief counsellor. He also argues that her sharing of personal or tender subjects was impacting his ability to face the day and placing immense strain on him.
- Dr Truffet also maintains Ms Bengston’s motivation for not acceding to his request to move into the Hosted Services area was because he knew too much about her personal life and she was concerned he may start to share the information with other team members.
- Separately, Dr Truffet has submitted he was prevented from raising concerns about his seating and utilisation due to Ms Bengston’s tendency to monopolise the conversation with discussions about her own personal affairs.
- Dr Truffet told the Commission Ms Bengston regularly spoke about her ex-partner in coffee meetings he attended with her, noting:
…she had no regard to my professional isolation or utilization. The only thing she wanted to talk about was extramarital affairs and workplace bullying…
- Ms Bengston’s evidence is that she and Dr Truffet would occasionally discuss personal matters at a coffee break, but explained that the origins to those discussions commenced possibly even before he even started working in her team, noting:
So probably one of the first times that there was a degree of personal discussion was even prior to joining my team, and it was in – David had come into work and appeared near my desk and I was on a series of phone calls, and noticed him sort of coming and going, and after he appeared and reappeared about three times, I asked – I put someone on hold and said, "Do you need me?" and he
said yes, that he needed to speak with me, and I indicated I would speak with him, but he indicated he wanted to speak to me privately.
So I got off the phone call, and he looked very physically uncomfortable, and requested that we speak privately at the coffee shop next door. So I agreed.
…when we got to the coffee shop, David disclosed to me that he had been quite badly injured in his arm by his partner, who had been violent towards him, and said that he couldn’t make the Friday meeting because he was going to court…
He looked like he was in a lot of pain and couldn’t lift one of his arms. And I was quite stunned and worried about him from that moment, and I – I asked, "Are you okay? Have you called the police? Have you had medical attention?" and the answer was no, no and no, and David indicated that – and I felt for him terribly, because the – that’s just a – an awful event anyway, but what he communicated to me was that as a man, you know, you stereotypically – you don’t go for help with the police, and – and it is difficult, because where there are children involved, that he needed to stay
– you know, be brave and not – so it was a very intimate, I guess, disclosure, and I had made a personal statement to say that – because he was – he was expressing emotion about his children, and saying that, you know, mothers aren’t the only ones that love their daughters, that fathers love their children as much as mothers do, it’s just sort of biology and society that, you know, separates them, and at the time, I had – my partner had struggled with access to his children as well, and – so yes, I – I certainly disclosed, from my own life, trying to be supportive, to say, like, you’re – you’re not alone.
So I had made that disclosure quite early on, and it – it was, I guess, unusual circumstances.
- Ms Bengston explained that after this event occurred, she took steps to check in on Dr Truffet from time to time to ensure that he was fine. She told the Commission Dr Truffet would become particularly distressed about his family circumstances around Christmas breaks and leave periods and that she was quite concerned for him around these periods.
- When she was asked whether she would share details of her own personal life with Dr Truffet, she said:
MR GRAY: And at the time that he was telling you these personal matters, were you reciprocating and telling him any personal matters about yourself?---
MS BENGSTON: Look, he already knew that I’d had a – a – separation. And so occasionally when I was, you know, referencing personal experience, there would be that kind of camaraderie, and I would say, "I get it. Like, I – I know it’s really tough," … 
- According to Ms Bengston the only other time her ex-partner came up in discussions she held with Dr Truffet was in the context of an IT security issue she was attempting to address with her home network in the wake of her separation from him in late 2015.
- It was common for Ms Bengston to access her Esri emails and phone at home. She told the Commission her ex-partner was a skilled IT professional. Ms Bengston sought advice from members of her team about how best to ensure her network was secure in circumstances where she became aware it had been compromised. In an email dated 17
December 2015, Dr Truffet sent Ms Bengston information about how to secure her home network.
- It was not unusual for Esri staff to have coffee meetings or to walk as a group to get take- away coffee from the local coffee shops. Staff including Ms Bengston, Dr Truffet and other team member would get a take-away coffee and chat along the way. Aside from meeting face to face on conferences or coffee meetings, employees at Esri, including Ms Bengston and Dr Truffet would also communicate via several electronic mediums, switching between the different platforms during the course of the day and night depending on the issue.
- Ms Bengston told the Commission that it was also not unusual for Dr Truffet to send her texts or emails outside of traditional work hours. Sometimes the texts would be sent at different times of the day or night, but she said that Dr Truffet's previous manager had forewarned her that he might do this from time to time.
- During the proceedings, Dr Truffet relied on several emails and text messages between himself and Ms Bengston in support of his position that her oversharing had contributed to the onset of his injury.
- Dr Truffet’s evidence was that in a coffee meeting on 16 December 2016, Ms Bengston raised the ‘tender subject’ of herself and Mr Smith being bullied by her direct manager, Jeff Robinson. According to Dr Truffet, she suggested that at one stage, senior management were trying to manage her out of the organization. She also told Dr Truffet about an incident where Mr Smith had been berated for not picking up his phone while on Annual Leave.
- Dr Truffet maintains he was sworn to secrecy, which increased his confusion about boundaries given his Asperger’s condition. His evidence was that he found the discussion around workplace bullying taxing and it was necessary for him to go for a walk for half an hour to regain his composure.
- During his walk, Dr Truffet received a text message from Ms Bengston inquiring about his state of mind. He received an apology from Ms Bengston acknowledging her inconsiderate timing, her sharing of ‘tender’ subjects and the negative impact it was having on his ability to face the day. Dr Truffet maintains the apology followed Ms Bengston commenting about Dr Robinson’s bullying conduct.
- In the final line of the text, Ms Bengston noted that she was looking forward to keeping in touch over the break.
- Dr Truffet submits he interpreted that particular text as meaning that his Manager, Ms Bengston, who he was dependent on for seating and work allocation would be disappointed if he did not keep in touch with her over the Christmas break, therefore robbing him of the end of the social interaction, noting:
Receiving written instructions over the weekend from my manager that advised me in effect that they would be disappointed if I did not contact them over the Christmas break while I myself was dependent on this manager’s continued and ongoing good will with regards to seating and work allocation, robbed me of the end of the social interaction…
- Dr Truffet’s interpretation of Ms Bengston’s text messages on 16 December 2016, in my view, is one of several examples in these proceedings where his recall, perception and interpretation of events, in so far as it relates to examples of Ms Bengston’s oversharing, is inconsistent with evidence before the Commission of what transpired between the pair.
- The Regulator provided the Commission with approximately two years of text messages, instant messages and emails between Ms Bengston and Dr Truffet to assist in the determination as to whether Mr Bengston’s "oversharing" and lack of professional boundaries contributed to the onset of Dr Truffet’s exacerbation.
- It is neither practical nor useful to reproduce all the written interaction in this decision, however where they weren’t otherwise related to work, the majority of the text messages fell into the following broad categories:
- (a)Dr Truffet inquiring as to whether Ms Bengston would like a morning take-away coffee or a sit-down coffee before or during work;
- (b)Dr Truffet inquiring as to whether Ms Bengston would consider meeting him for a coffee at South Bank or participating in other social (non-work) activities;
- (c)Dr Truffet sending Ms Bengston photos of areas in his house or the plants in his garden;
- (d)Dr Truffet making comments about the weather, gardening or plant related activities or offering to assist Ms Bengston with her gardening, chicken shed or other home DIY activities;
- (e)Dr Truffet sending Ms Bengston his best wishes in terms of her having a good weekend, a good night, sleeping well, getting better from an illness, a happy Christmas or holiday period and so on;
- (f)Dr Truffet making comments to Ms Bengston about his ex-wife, his family and their/his activities – e.g. father in hospital, not being able to see his daughters; being alone while on leave or at Christmas, assisting his mother build a new house;
- (g)Dr Truffet commenting on his or Ms Bengston’s past relationships or ex-partners;
- (h)Dr Truffet suggesting he and Ms Bengston take their friendship to a higher or deeper level.
- What is clear from the text messages is that for the most part, it is Dr Truffet that initiates the text conversations and interaction with Ms Bengston. Many of the texts sent by Dr Truffet were sent on a weekend, late at night or while he or Ms Bengston were on leave or away from the office.
- On occasion, the text messages show Dr Truffet attempting to move the text conversations away from more benign matters involving plants or favorite television programs to emotive, deeper subjects about his own personal circumstances, his friendship with Ms Bengston or their respective past relationships.
- Ms Bengston's responses generally fell into the following broad categories:
- (a)Ms Bengston declining coffee invitations or thanking Dr Truffet for getting her a coffee or agreeing to catch up for a coffee before work;
- (b)Ms Bengston responding in a polite and friendly manner to the images of plants and household activities;
- (c)Ms Bengston commenting on a television series or show she enjoyed;
- (d)Ms Bengston expressing sympathy to Dr Truffet after receiving a text about a challenging family situation he was experiencing;
- (e)Ms Bengston thanking Dr Truffet for his well wishes or thoughtful words and, at times, then enquiring as to how he was;
- (f)Ms Bengston declining invitations to non-work social events due to family or other commitments, delaying any response to an invitation or not responding at all;
- (g)Ms Bengston expressing confusion or not responding to Dr Truffet’s comments about taking their friendship to a deeper level.
- Depending on the content of the message, Ms Bengston responded within a few hours, a few days or not at all. For the most part, Ms Bengston replied to Dr Truffet’s texts about non-controversial topics in a brief, friendly and positive manner, for example:
"Wow stuff grows well in your garden!! If I have to pick a side I would choose the lemon tree…" "Oh wow that's fantastic!"
"Sure is! The working bee was cut very short today indeed"
"Hi David, they look like wonderful mulberries! Yes, I like them :)" 
- In an instant message conversation with Dr Truffet, Ms Bengston typed:
Hey David, good morning! Thanks very much for the chillies (fresh and dried) – hugely appreciated!
- On two occasions, Ms Bengston enquired as to where to purchase certain IT or hardware items following a text conversation about related matters.
- Ms Bengston's responses to Dr Truffet's texts about the personal matters he raised about his daughters or family were often, in my view, kind and compassionate. For example, in response to a text from Dr Truffet indicating he was in an empty house and lucky to see his daughters for an hour a month or even less, Ms Bengston responded with:
David that is awful and I am really sorry to hear it. I don't think it is widely understood how difficult things are for fathers like that. I do look forward to seeing you when I'm back. I shall be needing a proper coffee by that stage! 
- On several occasions, Ms Bengston politely declines or deflects Dr Truffet's offers of assistance or requests for out-of-work coffee catch-ups, for example:
Hi David. I'm being a busy bee this weekend but perhaps we can try before work one day next week. Hope you have a great weekend! Linda
Hi David, thanks for the offer, but I have my niece and her family visiting…Rest assured I'm not declining because I don't want to have coffee with you. I've been going fairly well flat out during the holidays getting things done. 
- Ms Bengston told the Commission she was aware of Dr Truffet's challenging family circumstances and his difficulties in terms of seeing his daughters over the Christmas period. She explained that she became concerned for his welfare and considered it was important to respond to his messages and ensure he was okay during those periods.
- Ms Bengston said that given Dr Truffet’s circumstances, she was keen to minimise any upset or hurt feelings on his part when she declined his requests for coffee at Southbank or outside of work. She explained how she would gently refuse or deflect Dr Truffet’s requests to have coffee at Southbank by re-directing the timing of any coffee catch ups to a date or time that generally fell within or around work hours. The message she wanted to send was that she didn’t want any interaction with Dr Truffet outside of work. She explained it wasn’t that type of relationship.
- Ms Bengston's evidence to the Commission as to the circumstances that led to her text message to Dr Truffet of 16 December 2016 where she noted, "we discussed some tender subjects, and in hindsight I realized my timing wasn't considerate, given the need for us both to put in a brave face and tackle the workday…", was completely at odds with the account provided by Dr Truffet:
And then you follow it up with another text asking how the rest of his day was. And he then responded to you? Yeah. So this is the last day that I was working before taking three weeks of leave. My – at Christmastime, so my concern at the time was that David had seemed more agitated than he had in previous months, coming into that Christmas period.
This particular day was a day when I did have a solidly booked calendar, and David had sought to connect with me at some point. And we had gone for coffee around the corner at the Pane E Vino coffee shop. And in that discussion – so David had asked to sit down. I said, "Yeah, okay, we can"
– you know, we could make time for a – we would normally get a takeaway coffee. But this was a sit-down coffee day. And he – the – this is where the topic had come around to David saying that he was preparing rooms in the house for Christmas and staying very busy. And I had asked a follow- up question, was he planning to see his daughters. And that had triggered an emotional response in David. And he'd actually cried in the coffee shop about not seeing the daughters for Christmas.
All right. And does that explain your text at 10.26 where you say: Yes. We discussed some tender subjects
? Yes. I felt bad for – I – I had the – I had the cues from David that morning that he was wanting to discuss this with me.
Yes? And, when he had mentioned the preparing of the rooms, I'd interpreted that as – you know, the lead-in to telling me and then I'd said, "So are you seeing your daughters?" And it had, you know, produced a – a pained response from David that I felt – I felt bad that he had – it had pushed
him into an emotional zone where he, you know, couldn't contain that emotion in a public place. I think I referred yesterday – this is the conversation that I'd apologised to David for pushing him.
Yes? And he went for a walk, before coming back to the office, to compose himself. 
Conclusions – Stressor Five, Manager’s divulgence of her personal life, from November/December 2015 until February 2017
- I prefer Ms Bengston's account of what transpired in the lead-up to the text message exchange on 16 December 2016. Dr Truffet didn’t challenge Ms Bengston’s recollection of the sequence of events and the content of their discussions during cross-examination. Her evidence, particularly in respect of what led to Dr Truffet becoming upset was clear and straightforward. She appeared to have a strong recollection of the circumstances in which she sent the text to Dr Truffet. Further, the subsequent text messages and the content sent by Dr Truffet to Ms Bengston in response to her inquiries about his well- being on that day, appear to align with the events as described by Ms Bengston.
- It may well have been the case that there were some discussions about Mr Robinson and his treatment of various team members around the office, but I am not persuaded the reason Dr Truffet took a walk for half an hour after their coffee interaction was as a result of Ms Bengston over-sharing information about herself and Mr Smith being bullied. I am also not persuaded, for reasons set out below, that the discussions were unwanted on the part of Dr Truffet.
- Instead, it seems more likely that having discussed the arrangements for spending time with his daughters over the Christmas period, Dr Truffet became upset.
- Likewise, having considered the content and tone of much of the written interaction between the pair, along with the oral evidence in respect of their verbal discussions, I am not persuaded Ms Bengston was using Dr Truffet as grief counsellor.
- Instead, it seems more likely that Ms Bengston was more often than not drawing on her own personal experiences as a way of supporting Dr Truffet during their discussions. In this regard, I am also satisfied that Dr Truffet enjoyed, if not welcomed his interactions with Ms Bengston up until mid-March 2017, consistently seeking her out for coffee chats and other discussions (verbal or otherwise) about a range of matters.
- During cross-examination, in response to questions around when his interaction with Ms Bengston started to become problematic and a suggestion that he welcomed the interaction (from his perspective), Dr Truffet acknowledged:
…I wasn't having a problem with the SMSs at the time but if my understanding was diverging so it may not have caused me distress or upset but in that case I don't have a problem per se but if we are talking about a manager and an employee and it impacting the manager relationship, then I have a problem that I may not have been aware of at the time…
Mr Gray: Perhaps I will rephrase? ---Yep. It wasn't causing you emotional ---? --- No.
---distress, these interactions? --- No.
It wasn't causing you any injury ---? No.
And what you are talking about is the problem that you have since become aware of after after March 2017. See, what you are talking about, the difference of opinion, at this stage you were enjoying these interactions, weren't you? Yes
You were inviting them and you were encouraging them? Mutually, yes.
And its only it's a benefit of knowing Ms Bengston's views after March 2017 that you now say there is a problem; do you accept that? Not after March 27th, 2017. After March 21st 2017.
--- Then on the 21st of March we – plus or minus a day, it was in the evidence as to the exact date. It may have been the 22nd. We went for a meeting at a coffee shop and Ms Bengston advised me that Vince would not be moving for another six months and that I would have to remain in the BD area for at least six months and that I would have to remain in the BD area for at least six months if not indefinitely.
- In light of Dr Truffet's evidence, I am satisfied his interactions with Ms Bengston in so far as they related to their communication during coffee meetings or via text message, emails or instant messaging were not causing him any significant distress or impacting his ability to face the day, at least up until 21 March 2017.
- It was also during this period that Ms Bengston repeatedly and overtly attempted to re- direct or re-set their conversations and interaction such that Dr Truffet clearly understood that she was not prepared to discuss or engage on non-work matters.
- The evidence indicates that very early on in their interaction, Dr Truffet approached Ms Bengston in respect of some challenges he was experiencing in a domestic sense. Ms Bengston presented as a compassionate and empathetic manager who held some genuine concerns for Dr Truffet and his well-being. At times, Ms Bengston communicated some of her own experiences about family and personal relationships with Dr Truffet, however I accept this was done to support and empathise with Dr Truffet.
- Managers take varying approaches to the way they engage and supervise team members in the workplace, particularly where a staff member may be exhibiting signs of distress or experiencing personal turmoil. Certain managers have no interest in engaging in conversations about personal challenges an employee may be experiencing at home and will refer or direct the staff member to an Employee Assistance Program, a HR Manager or some other support area.
- Alternatively, others ignore the situation completely, often to the detriment of the employee and team productivity more broadly. Other managers consider it their role, to be alive to issues directly impacting the welfare of a staff member and in turn the performance of their team. Where appropriate, it is not uncommon for Managers or supervisors to support employees for a period of time at a local level before escalating the issue or referring an employee for additional assistance.
- For the period from November 2015 until late February 2017, I am not persuaded Ms Bengston's discussions could be characterised as oversharing, nor am I satisfied that any interaction that did occur between the pair between November 2015 until late February 2017 impacted Dr Truffet's ability to face the day and/or created immense strain for him. If anything, he appeared to welcome the interaction with Ms Bengston.
- During the proceedings, Dr Truffet confirmed that it was not until early 2017 that he became distressed by Ms Bengston’s treatment of him.
- On the evening of 23 February 2017, Dr Truffet sent Ms Bengston a text message:
Dear Linda, You know from both Tom and Gary that if I see a friend bullied I would rather redirect the bullies attention than see my friend bullied. This I would do for any friend. Months ago you outlined we'd be 'just friend' and this I agreed to. Unfortunately my reaction yesterday/last night confirmed that my care and concern for you is far stronger and deeper than 'just friends'. The only way I can honour your 'just friends' request is to take a big step backwards. I'd be greatfull (sic), if one day you'd invite me for a coffee so I can say this in person. But I fully understand if you did not.
- Ms Bengston did not respond to the message. She told the Commission that she did not tell Dr Truffet she was being bullied.
- On Monday (27 February 2017), Dr Truffet sent Ms Bengston an instant text message advising that everything had come crashing down. Ms Bengston thanked him for his message advising '…I wasn't sure what to do after your texts'.
- Five minutes later at 3.22 pm on 27 February, Dr Truffet sent Ms Bengston a further email under the subject heading 'I wasn't sure what to do after your texts' where he advised Ms Bengston that people suffering from Asperger's have deeper and more intense emotions than most can understand. Included in his email was another request that she go for a coffee and a stroll with him outside the artificial time constraints of work.
- In response to the Dr Truffet’s 27 February 2017 email, Ms Bengston confirmed she was not in a position to meet Dr Truffet after work, noting:
I do enjoy our conversations, you have a very brilliant and compassionate nature, and I value your friendship and insights highly, but I'm just not comfortable in meeting up outside of work, lest it be construed as a step towards a non-platonic relationship. This could cause significant difficulties, particularly in terms of my current position and responsibilities at the company, and the fact that you are part of the team I am responsible for…
- Dr Truffet responded about fifteen minutes later advising that he "understand you (sic) concerns and happy to step back and give you some space, so happy to follow whatever you think best."
- The following day, Ms Bengston spoke to Ms Clauson, the Esri HR Manager about Dr Truffet. A file note retained by Ms Clauson about their conversation records Ms Bengston as stating that Dr Truffet's behavior towards her had started to make her feel uncomfortable.
- The file note records Ms Bengston as touching on subjects such as Dr Truffet's prior manager also advising he had received emails on weekends, the content of the texts she was receiving such as gardening and children, along with an observation:
notices when she has shared personal details he will send personal details
- Ms Bengston advised Ms Clauson that she wanted to manage the situation, but she was advised to tell Ms Clauson about any further developments.
- In an instant message at 4.00 pm, Ms Clauson suggested to Ms Bengston that the best way to engage with Dr Truffet was simply to say, "No thank you David. Nothing else." Her rationale was that Ms Bengston had already gone into a lot of explanation about why it wasn’t appropriate, so it would be best to give a short, direct response.
- According to Ms Clauson's file note, Ms Bengston didn't have time to respond to Dr Truffet on 2 March 2017.
- The following day on 3 March 2017, Ms Bengston received another instant text message asking if it was too late for coffee. She declined the invitation, noting that she needed to get into work. Ms Bengston then received a further email from Dr Truffet at 9.30 am advising that he was heading to a client and would then be heading home due to some issues associated with his father. In the email, Dr Truffet also advised Ms Bengston he had left an envelope under his laptop – "some platonic advise (sic)", for Mr Bengston to retrieve.
- Ms Bengston responded to Dr Truffet's email at 10.30 am on 3 March 2017 advising she had retrieved the material. Twenty-five minutes later she received the following response from Dr Truffet:
Thank you Linda
As is for me being a platonic friend means being a neuro typical heterosexual female. But often it is hard for others to see past the container I am in.
Unfortunately last week I had an Aspergers meltdown, and sorry for the discomfort it has caused you.
As is they are a reaction to stress and can be avoided either by
- Avoiding stress or
- confiding in a very close friend that one is approaching.
For now I think the first option is the best.
- At 8.06 am on Monday, 6 March 2017 Dr Truffet resent the email to Ms Bengston with the subject heading 'sealed envelope'. Fifty minutes later he sent an email to Ms Clauson inquiring as to whether she had any insight into "…how hard/easy it actually is to move offices/interstate within Esri Au".
- At 7.09 am on Tuesday 7 March 2017, Dr Truffet sent an email to Ms Bengston from his private email:
Currently you may find me very cold and distance (sic).
Please be assured that there is no ill will or ill feelings behind the persona.
I do not have the mental capability to hold on to ill feelings anyway but it is going to take me two to three weeks to fine tune this persona to a socially acceptable norm. (I just hope I do not offend in the mean time while fine tuning it)
Unfortunately social events are taxing for me and I unconcensuly (sic) gravitate towards the one or two people I trust.
So Friday drinks and other work related social events I am going to avoid.
The only thing I ask is that you yourself do not avoid them on the basis that either I may be there or not, as there is no point on both missing out.
Kind regards David
Anyway, I will only use work email/phone for work, and I will endeavor not to send from this email again, and you are welcome to put this email in your junk mail list.
- As far as I can tell, other than work-related matters, there was limited contact between Ms Bengston and Dr Truffet in terms of email, text message or instant messenger between 8 March 2017 until Friday 17 March 2017.
- On Friday 17 March Ms Bengston thanked Dr Truffet for his assistance with a work matter. A couple of hours later Dr Truffet sent an instant message to Ms Bengston:
As is I still owe you an apology for after our last coffee meeting about Jeff's micromanagement.
Sometime next week I'd be honoured if you found time to share either a pork belly roll or coffee with me :)
Anyway, no need to reply,
- Ms Bengston's response was simply, "Hi David, no worries. And, thanks for helping the HS team." Ms Bengston did not respond to the invitation for coffee.
- At 8.53 am, the following Monday morning, 20 March 2017, Dr Truffet printed off a copy of an Asperger's guide on "How to be a better friend to an adult with Asperger's Syndrome a.k.a. High-Functioning Autism" and left it on Ms Bengston's desk. The material also contained some notes from Dr Truffet about his experiences with Asperger's Condition, along with a 32 digit code at the bottom of the document. Ms Bengston told the Commission she became quite fearful of the code and what it meant from an IT perspective.
- The following day, 21 March 2017, at 3.26 pm Dr Truffet sent an instant message to Ms Bengston asking if she wanted a coffee the following morning, noting:
Coffee tomorrow morning?
no talk about exs, or managers or insights etc…,
just pop down, pick up a take away from next door and head back upstairs?
- Ms Bengston responded advising that she was interested in having a conversation about the printed material he had left on her desk, suggesting they catch up in a meeting room. Dr Truffet took the opportunity to highlight that a previous meeting where Mr Robinson's management had come up had triggered a meltdown, explaining that his recent SMS's were 'partly me straining under the load'. Eventually, it was agreed they would have a coffee meeting.
- Later that evening, Dr Truffet sent Ms Bengston an email from his private email account containing links to information about Asperger's and meltdowns along with some of the following comments:
during the coffee you expressed concern that yourself burdened me and cause me to meltdown; please rest assured the exact opposite it true
As I may have said over coffee (in different words), you are one of the most patient and understanding NTs I have ever had the fortune to meet.
Including the 18 months I was on leave without pay, during which I had multiple meltdowns(implosions).
Returning to work and finding a friend to help and support (even if they were not aware of the support I was giving), was deeply therapeutic for me.
As said, helping friends…is one of the most deeply rewarding things I can do. And until recently has helped me avoid a meltdown…
And if not for the trust we have been able to show in each other, I would not have been able to withstand the negative stresses my ex still excerpts (sic) on me via Anna/Angela, and probably would have had more meltdowns than the more recent one.
- From his work account, he sent a further email to his line manager, Mark Smith, cc'ing Ms Clauson and Ms Bengston at 9.54 pm on Wednesday 22 March 2017. The email contained links to information about Asperger's and meltdowns. He indicated that he may need some time off, noting he'd been stuck 'riding a highly emotional state for a couple of weeks now'.
- Separately, Ms Bengston had already contacted Ms Clauson the day before and advised Dr Truffet had left material on her desk, including a reference to a 32 digit code he had included in the material. According to a file note retained by Ms Clauson about her discussion with Ms Bengston, Dr Truffet had indicated the purpose of the code would be revealed in twelve to eighteen months. It was agreed that Ms Bengston would take steps to try and get a better understanding of what the code meant.
- Ms Bengston told the Commission that by this stage a lot of Dr Truffet’s written communications didn’t align or relate to any verbal conversations or interactions they were having. That is, she was unable to understand a lot of what he was saying in his written communication or how this related to their verbal discussions.
- The following morning on 22 March, at 5.52 am, Dr Truffet sent Ms Bengston a lengthy email which included links about Asperger's pain perception and body awareness and some further commentary:
I see both you (your mind/ideas/values/intelligence/integrity) and the container you are in as two separate identities, of the two, it is the first that I value.
This is in part why I prefer communicating with you in writing, the mind/sole/thoughts/ideas of a person is what I valued, (especially after 20 years with a bad person)…
But I also prefer communicating over coffee because I understand that for you it may be best face to face…
Misunderstanding about 'platonic' goes to the above and my understanding of the dictionary definition – "a terms for a friendship between a man and a woman which doesn't include a sexual element".
- At the conclusion of the email, Dr Truffet acknowledges there is some 'ill defined' resistance to him working with Hosted Services and makes a suggestion about him moving back to Professional Services.
- Later that afternoon Dr Truffet sent a text message to Ms Bengston noting:
I have been doing some maths and would like to ask my friend a question as opposed to the other hat you also ware (sic). As is my logical mind has reestablished itself. Can you please send me your non work email address? I will be extremely sensitive not to step on your toes in anyway also as I am asking as a (platonic) friend I do not wish to ask it via work, and I can only ask you as a friend if you are happy to place some trust in me as a friend. But I also understand if I have asked too much.
- Ms Bengston responded about half an hour later advising that she didn't feel comfortable in communicating in personal email accounts, noting that she thought they had a good 'reset' conversation yesterday and confirming that her understanding was that things were back to business as usual.
- Dr Truffet responded almost immediately, noting that to put her mind at ease, the purpose of the email was going to be around the probability of him being able to move sideways into Professional Services – either initiated by Dr Truffet or through a forced head count reduction.
- In a file note dated 22 March 2017, Ms Clauson recorded details of a conversation she held with Ms Bengston who confirmed that she had a coffee with Dr Truffet to discuss the materials he had left on her desk, along with the code. According to the file note, Ms Bengston advised Ms Clauson that she had made it clear to Dr Truffet she wanted no further discussions around personal matters.
- According to a file note dated 23 March 2017, Ms Clauson held a meeting with Ms Bengston and Mr Smith to discuss the emails that had been sent by Dr Truffet overnight on 22 March 2017. During that meeting it was agreed that all future communications would be handled by Ms Clauson. She noted:
I was going to contact David to discuss with him and suggest that he get medical attention and take as much leave as he needed. 
- In an email at 9.04 am on 23 March 2017, the same day, Dr Truffet asked Ms Bengston if she would like a coffee. Ms Bengston responded at 9.05 am with "Thanks David – I'm OK – really appreciate it though!"
- Dr Truffet sent Ms Bengston a further email at 6.25 am on 23 March 2017 the next day (a Thursday) noting:
Over our last coffee meeting one of the main concerns was that you were responsible for managing me.
The only solution apparent to me for this is for me to move out from under your management, so I have asked Mark to look at moving me back into Peter's (PS) group proper.
Answers to other questions can be found in SMSs between the 20th and the 31st of December, and I must deeply apologies (sic) for reading these literally and for getting stuck in that point in time.
- A couple of hours later at 9.49 am, Dr Truffet emailed Ms Clauson seeking a meeting. She offered to have the meeting over the phone given he was on leave, but he declined, preferring a face to face meeting.
- Dr Truffet forwarded the email to Ms Bengston advising she was welcome to attend. Ms Bengston was advised by Ms Clauson not to respond. It was suggested she leave the building around the time Dr Truffet attended the meeting.
- The meeting between Dr Truffet and Ms Clauson took place at 2.00 pm on 24 March 2017. In a file note, Ms Clauson made some records about her preparation for the meeting, listing some items she wanted to cover which included:
Focus on meltdown Take leave
Aware of emails about transferring – when back need to discuss
Put out of office on – I'm currently on leave. Please direct inquiries to Mark Smith
Ask HR about getting medical clearance
Complete break – no expectation to respond/check emails
- Separately, Ms Clauson retained a file note in respect of her discussions with Dr Truffet. According to the file note Dr Truffet requested approximately ten days of leave. Dr Truffet advised he would obtain a medical certificate, indicating he had visited his GP recently.
- Dr Truffet handed Ms Clauson a statement during their meeting. The statement included references to his Asperger's condition and an account by Dr Truffet of a recent request he made to a friend to go for a walk at Southbank to relieve stress in circumstances where his mother and step father were currently living with him and he was unable to release his stress at home. According to Ms Clauson, Dr Truffet became upset when he discussed losing a dear friend. Dr Truffet contacted the GP to make an appointment while in the meeting with Ms Clauson.
- At the conclusion of the meeting, the file note describes Ms Clauson enquiring with Dr Truffet as to whether he is well enough to get home. Dr Truffet confirmed he was fine. Ms Clauson noted that she told Dr Truffet to take as long as he needed to get better and
to use the time off to have a rest. Ms Clauson followed up with Dr Truffet's line manager, advising that he would be taking two weeks off and advising that an out of office message would be placed on Dr Truffet's emails.
- Over the weekend, Dr Truffet contacted Ms Clauson advising that his access to his emails had been disabled and requesting an email be forwarded to him. Ms Clauson responded early Monday morning, advising Dr Truffet that she had checked with IT who had confirmed his email was still active and his password was still current.
- After taking steps to reset Dr Truffet's password so there could be no question about his access, Ms Clauson sent an email to Dr Truffet a few hours later requesting that he take the opportunity during his leave to 'take a complete break'. Further, that the only occasion he would need to email would be to update Mr Smith in relation to his return to work date.
- On the same day Mr Smith emailed Ms Clauson advising her that Dr Truffet had attempted contact by both phone and skype. Mr Smith highlighted Dr Truffet appeared to be struggling to detach from work. He forwarded an email to Ms Clauson he had received from Dr Truffet attaching the requested medical certificates (dated 24 March 2017) and providing more information about Asperger's meltdowns, where he noted:
Meltdowns are well understood and a protected attribute of Asperger, but NTs really don't understand them until they see the lead up to one. And unfortunately most have little or no understanding or insight into an Aspie's motivations etc…
or me having spent my entire life studying both Aspergers and NTs (everyone else), I know my triggers and how to manage my stress, but was blindsided by an NT without insight into or understanding of my condition. (Amanda has more details if you are interested).
A few days away from social interaction have done me good, but I still think I should follow my GPs advise (sic) and relax for the next two weeks. (other than maybe to drop by for password reset)
- Later that afternoon, Dr Truffet arrived uninvited to Ms Bengston's home. She said:
– I opened the front door and David was there. I was fearful. I asked David why he was there, and he said he needed to talk to me. I indicated that he couldn't come inside. I live alone, and I didn't feel safe, and he sat down on the front stairs and said that he would talk to me outside then. So I shut the front door and went out on the stairs with him - - -
- - -because he'd sat down and was telling me that he needed to speak with me. So I sat down as well, just one stair up, and asked how he got my address, and he said that he had seen me sharing a photograph of the new house when I bought it, with one of my colleagues, and that he'd remembered that and it wasn't much to put together that it was on a main road and what the house looked like.
I asked him why he was here, and he said that he needed to talk to me as his friend not his manager. I told him that he shouldn't have come, and that he was frightening me, and he said he wouldn't take long, and he just needed to talk to his friend. He mentioned then that he would be – he was taking some time off work. That I shouldn't be surprised if when he returns that he would be looking for
a different job. There was some back and forth where I was asking what – why he was there still. I was still really shocked that he was at my house, and I was really scared. That it just seemed like a huge escalation and a dangerous one, but he said that he hoped I would find somebody who really appreciated me.
I asked about the 32 digit code, and said that that had frightened me and could he at least tell me what that was about, and he said that it's got information for me. I would find out in the, you know, the 18 to 20 months or one – one and a-half years to two years…
and after a while David indicated that he'd said what he wanted to say and – and he left.
- Ms Bengston said that after Dr Truffet left, she called Ms Clauson for advice.
- A file note prepared by Ms Clauson in respect of the incident noted:
Linda Bengston called me at approx. 6.24 pm Mon 27 March 2017. I was driving at the time.
She told me [indistinct] had escalated and David had turned up at her door. She talked to him for about 20 mins on her front steps; he didn't enter her home. He told her he was going to resign and would start looking for a new job. He would probably look to extend his leave for another couple of weeks to give him time to do this.
Linda asked him how he found her and he explained he had heard her [indistinct] Belmont and had recalled some vague details and had worked it out. She was very shaken by the experience. She was going to go to Bunnings to buy a big bolt to go on the front door tonight and get a mate to come over and help her fix it. I asked her if she had considered calling the police and she had but wasn't sure. I said I would call Kelvin to get advice. She agreed.
- Separately, Dr Truffet sent another email to Mr Smith and Ms Clauson at 7.59 pm on the same evening noting:
Hello Mark Hello Amanda
A lot of my social filters are starting to come back on line, and wishing they were online a week earlier.
I'd be grateful if whatever I have shared can get sealed away not to see the light of day.
I'm also thinking of taking an extra two weeks holidays as soon as the medical leave finishes just to by (sic) completely destressed.
- At 10.41 pm on the same evening he sent a further email to Ms Clauson and Mr Smith noting:
On further consideration can you please book the remaining of my leave to be taken after the two weeks medial break.
- As best I understand it, at some point between when Dr Truffet attended Ms Bengston's home and the sending of those two emails, he was contacted by the police in respect of his attendance at Ms Bengston's home earlier that evening.
- Dr Truffet subsequently emailed his resignation to Ms Clauson on the same evening. He told the Commission and Dr Zimmerman that he was hopeful that by resigning, the proposed charges against him wouldn’t be pursued.
- Ms Clauson contacted Dr Truffet by phone the following day to finalise his departure. She retained a file note about the call where she noted the following:
I called David to arrange collection of his company equipment (iPhone, laptop) David indicated that he had been "socially inappropriate"
I confirmed David's pick up address as [address]
Initially, David suggested Friday for pick up and I said it shouldn't be that long and I would prefer Wed. (the next morning) to which he agreed.
I also said to David that I was aware that he had been in the building at around 7.30am this morning and asked him why. He said he wanted to remove some personal items. I asked "such as?". He said his toothbrush.
David expressed that he appreciates our kind consideration. I reminded David he was not to enter work premises.
(NB – later when I inspected David's box of personal effects collected by OS there was a toothbrush!)
(emphasis reproduced as in original)
Conclusions – Stressor Five
- While giving his evidence, Dr Truffet confirmed his interactions with Ms Bengston, certainly up until 21 March 2017 were not causing him any distress.
- From February 2017 until he resigned, the evidence indicates that on most occasions it was Dr Truffet who was initiating contact with Ms Bengston. By 27 February 2017, Ms Bengston had made it abundantly clear to Dr Truffet that she did not wish to interact with him outside of work hours for the reasons set about above.
- Dr Truffet confirmed on a number of occasions that he understood her position yet continued to send Ms Bengston emails or text messages inviting her to coffee or suggesting they take their friendship to a deeper level.
- There is limited, if any, evidence in these proceedings that indicates Ms Bengston was divulging aspects of her personal life in the period February 2017 to March 2017 in a manner that was unwanted or unwelcome.
- As part of Stressor Five, Dr Truffet maintains Ms Bengston’s sharing about being bullied by Mr Robertson upset him. Certainly, this issue features heavily in his written submissions.
- I note that Dr Truffet did send an email to Ms Bengston on 18 December 2016 referencing a situation with a prior employer where he had defended some colleagues who he
believed were being bullied, however on the face of it, the purpose of the email appears to be more about Dr Truffet demonstrating to Ms Bengston that he is a 'good guy' who is prepared to assist friends when he determines they need help.
- The evidence indicates that Dr Truffet did not include any meaningful references in his texts or communication to Ms Bengston about Mr Robinson and workplace bullying until 23 February 2017. Just prior to sending the text, Dr Truffet had asked Ms Bengston if she wanted to catch up for a coffee, where he attempted to again explore the option of moving into Hosted Services with Ms Bengston.
- As best I understand it, Ms Bengston yet again pushed back on the idea. It seems that Ms Bengston, as part of those discussions, told Dr Truffet that Jeff Robinson (her direct Manager) might be moving into Hosted Services, suggesting her team would be under even further pressure in circumstances where a member of the Executive management was sitting with Hosted Services.
- Dr Truffet did not provide any evidence to the Commission that he had observed Ms Bengston being bullied. Instead, he relies on an email Ms Bengston sent to him on 27 February 2017 in which she writes, “I realise that I inadvertedly caused you distress when we discussed the proposed seating changes last week, particularly when I commented on the extra pressure that could come about with an executive being located within our area…"
- In her evidence to the Commission, Ms Bengston acknowledged that it would not have been an ideal arrangement to have an Executive of Mr Robinson’s standing being located at such close proximity. Ms Bengston told the Commission that Mr Robinson had a blunt management style that extended to being quite direct with employees including herself at times, when he considered they had done the wrong thing. Staff within her team were aware of his approach but she denies advising Dr Truffet that either herself or Mr Smith were bullied or seeking counselling from Dr Truffet as a result of any bullying.
- On balance, I’m not satisfied the evidence supports a conclusion that Ms Bengston divulged or over-shared information about Mr Robinson bullying her or others in such a way that it could have led to him being distressed.`
The Medical Evidence
- According to a report prepared by Dr Podagiel for separate proceedings, but tendered during this Appeal, Dr Truffet was diagnosed with ASD prior to becoming his patient. He had previously diagnosed Dr Truffet with an adjustment disorder following the ill- health of his father and a marriage break-down.
- Dr Podagiel had previously seen Dr Truffet at his practice on other occasions, but he told the Commission that 24 March 2017 was the first time Dr Truffet raised a number of the stressors that eventually formed part of Dr Truffet's Workers' Compensation claim.
- Dr Podagiel reported that on 24 March 2017 Dr Truffet attended his room requesting a medical certificate and complaining of stressors at work which had caused an exacerbation of his symptoms. Dr Podagiel told the Commission that Dr Truffet had essentially told him he had gotten too personally involved with his Manager and he'd been "drawn into interacting with this person too much, so drawn in too much." He went on to say:
…basically he felt that he'd not been able to maintain appropriate professional boundaries because of what the other person had shared with him.
- Dr Podagiel issued a medical certificate confirming Dr Truffet wasn't fit to undertake his normal duties from 24 March 2017 until 9 April 2017, but noted that in the event he felt able to return to duties, he would be medically clear to return without further examination.
- Dr Podagiel confirmed he issued the certificate in this way because he had some past experience with Dr Truffet whereby, he would have a meltdown, reset and then return to work in a relatively short period of time. At the time, he didn't think the description of over-sharing at work was going to lead to a long-term inability on Dr Truffet's part to return to work.
- Up until 12 April 2017, Dr Podagiel confirmed Dr Truffet had not raised any concerns he may have held about where he was seated at work. His understanding was that Dr Truffet's primary concern related to intimate details being shared by Ms Bengston with him including information about her love life and partners. Dr Podagiel explained to the Commission that the sharing of such information has a different impact on a person with Autistic Spectrum Disorder.
- On 12 April 2017, Dr Podagiel issued a Workers' Compensation medical certificate. He diagnosed "adjustment disorder, exacerbation autistic spectrum disorder". The stated date of injury was February 2016 onwards, with a note that Dr Truffet had been first seen at the practice for the injury on 10 March 2017. The stated cause of injury is "work colleague caused unfair psychological burden by inappropriate personal relationship requiring support of px".
- In a report dated 2 June 2017, Dr Podagiel concluded that Dr Truffet's workplace stressors were the main cause of an exacerbation of his ASD symptoms. In the same report he stepped though his understanding of the events that had occurred in the workplace that led to Dr Truffet's injury, including:
- (a)From 16 December 2016 he participated in conversations with his manager that were inappropriate and left him feeling uncomfortable;
- (b)That he should have been treated better by his manager, who should have had better training and awareness of his condition;
- (c)That his manager was sending him mixed messages – i.e. stating in a later police statement that she was uncomfortable with his contact and wanted to discourage the contact but sending earlier SMS's which were inconsistent with her comments to the police;
- (d)A failure on his manager's part to advise Dr Truffet that he was violating boundaries;
- (e)A failure on his manager's part to advise Dr Truffet's contact was unwelcome.
- Dr Podagiel told the Commission the actual cause of Dr Truffet's injury was Ms Bengston's conduct as a supervisor. He noted that his report failed to mention the issue of seating. He said that at the time of preparing his report he was not fully cognisant of the seating issue and its impact on Dr Truffet. He hadn't ascribed much seriousness to the seating issue.
- He explained that it was possible that one particular stressor would have seemed more important at the time, particularly when a person has ASD, whereas in hindsight it might be that other stressors or matters are equally just as prominent or important.
- Having been provided with more information about the effect it had on him, Dr Podagiel was of the view Dr Truffet's concerns about where he was seated formed part of the stressors that contributed to the onset of the injury.
- He maintained there were a number of interactions with Ms Bengston that led to significant psychological stress for Dr Truffet. According to Dr Podagiel, his stress then escalated and led to a deterioration in the professional relationship Dr Truffet had with his supervisor and manager. In turn, this caused a significant exacerbation of his ASD symptoms and he was not able to continue working.
- During cross-examination, Dr Podagiel confirmed the criminal matters Dr Truffet had to deal with, in the wake of his visit to Ms Bengston's home on 27 March 2017, also caused him some considerable stress. He understood, as well, from his discussions with Dr Truffet that he was told by his employer shortly after his resignation that he would never be able to work in the GIS sector again.
- Dr Podagiel also confirmed Dr Truffet had a good insight into his ASD and probably understood the dangers of inappropriate contact with other people.
Dr Zimmerman – Psychologist
- In a report dated 16 April 2018, co-authored by Dr David Zimmerman and Professor Tony Atwood, Dr Truffet was diagnosed with ASD, Level 1 (previously known as Asperger's).
- The authors described Dr Truffet as experiencing depression, anxiety and stress symptoms in the severe range. The authors made the point that his symptoms were in the context of criminal charges brought against Dr Truffet on 27 March 2017, who according to Dr Zimmerman and Professor Atwood, resigned from his employment at Esri in the hope the criminal charges would be dropped.
- By way of background, the authors noted Dr Truffet had reported experiencing significant confusion and stress in circumstances where his line manager disclosed personal information to him. Dr Truffet was reported as feeling confused and stressed as a result of holding two roles at work, namely an employee and a confidant of his line manager which commenced in late 2015.
- In his evidence to the Commission, Dr Zimmerman explained that his understanding of the discussions between Dr Truffet and Ms Bengston, in so far as they involved discussions around personal problems, was that the discussions were reciprocal. That is, Dr Truffet would confide in Ms Bengston his concerns about not being able to have access to see his children.
- In turn, Ms Bengston would draw examples from her own life about her parents separating when she was a young child. Dr Zimmerman explained that someone on the autism spectrum would have found these discussions to be confusing.
- The report also noted that the build up of stress and confusion exacerbated Dr Truffet's ASD and contributed to an emotional meltdown. In circumstances where introspection is a common trait of ASD, there was an opinion within the report that Dr Truffet was not fully aware of his build up of stress and confusion, eventually expressing an emotional meltdown in the presence of Ms Bengston on the evening of 27 March 2017.
- Under the heading "Professional and Personal Isolation and Underutilisation at Work", the co-authors highlighted that Dr Truffet's stress and confusion was also aggravated by professional and personal isolation in the workplace. Dr Truffet had reported as feeling confused by the decision to seat him away from his team in circumstances where it was necessary to have regular interactions and discussions to be effective in his role.
- The report concluded Dr Truffet's injury could be explained by his work circumstances (i.e. dual roles with his line manager, professional isolation and underutilisation) and represented a significant contributory factor to his personal injury.
- In his evidence to the Commission, Dr Zimmerman explained that Asperger’s condition encompasses two broad areas of qualitative impairments, the first being social interaction and communication, with the other being restrictive, repetitive and/or stereotypical
patterns of interest, activities or behaviours. He explained that although a person can be considered to be a Level 1 in their severity, that the symptomology can deteriorate such that they can be assessed at Level 2.
- Dr Zimmerman noted that both sensory and social interactions are difficult for a person on the autism spectrum. He noted that sounds coming from a kitchen or the general noise level of people talking were examples of auditory sensory processing sensitivity.
- He also confirmed that it was possible for someone such as Dr Truffet to block out social background noise by immersing himself in an area of intense technical discussion. That is, there was a qualitative difference between the noise coming from kitchen and dining areas in the workplace versus the noise in the Hosted Services area. During cross- examination, Dr Zimmerman confirmed that situations where Dr Truffet overheard conversations, which involved identifying solutions or problem solving, could also be a distraction.
- Dr Zimmerman told the Commission he saw Dr Truffet for the first time on 6 April 2017. He observed Dr Truffet crying throughout their session and noted that he was significantly upset and distressed. He noted that at the time, Dr Truffet was dealing with a legal matter “related to him showing up to his boss’ place on 27 March 2017”.
- Dr Zimmerman’s evidence was that Dr Truffet injury was best characterized as ‘exacerbation of autistic spectrum disorder’. In his opinion, which he confirmed was based on what Dr Truffet told him during their appointments, the injury, which is the subject of this appeal, arose as a result of prolonged and cumulative stress that took place over a period of time in the workplace which was related to Dr Truffet’s seating position, the isolation that he reportedly experienced and the deterioration or exacerbation of his ASD symptoms.
- Dr Zimmerman described the symptoms associated with Dr Truffet’s injury as being impaired communication, impaired introspection and impaired cognitive function.
- According to Dr Zimmerman, there existed ‘evidence, both in Sweden and in the United Kingdom, that self-harm and suicide rates are much higher for those individuals diagnosed with ASD…”
- After being shown three text messages from Ms Bengston to Dr Truffet in response to his requests to catch up for coffee outside of work hours, Dr Zimmerman was of the opinion that a person with ASD or Asperger’s would have been confused by the messages. He considered that for someone with Dr Truffet’s condition, it wouldn’t have been clear to him that Ms Bengston did not want to have coffee.
- During cross-examination, Dr Zimmerman was shown further text messages where Dr Truffet had confirmed in his communications with Ms Bengston that he would ‘step back’. He acknowledged this was an indication that Dr Truffet was able to understand Ms Bengston wasn’t going to catch up with him outside of work, but noted:
…it needs to be understood, at this point, Mr Gray, that the confusion around the dual roles here is what was causing a lot of stress for David, at the time. That, on the one hand, you and I, as neurotypical people, without an autism spectrum disorder, might be able to piece all of this together, but the – the context of what was going on for David, in terms of his professional isolation, this desperate desire, almost obsessional in nature, which described the traits of ASD, to communicate to Ms Bengston what was going on for David, at the time, he did not feel that he was able to communicate in a work context and that the only way to do this was outside of that work context – or instead of in that role of line manager, it would be as that confident. That was – although David indicates, in his writing, that he understands this, in his emails and text messages, that he understands this, it – it -it – he would be torn and he would know no other way of problem solving or moving forward. He was stuck.
- Although Dr Zimmerman acknowledged it was reasonable for someone like Mr Bengston to show compassion - in circumstances where an employee was disclosing they had gone through a bad divorce and were experiencing difficulties accessing their children – he was also of the opinion that Ms Bengston should have had "a much greater professional set of boundaries and that these should have been addressed far earlier on in that relationship".
- According to Dr Zimmerman, he was told by Dr Truffet that Ms Bengston had said to him that "he reminded her of her former lover…and that he needed to be in a certain position … for a remaining six months". He clarified that the two points noting:
…I think there’s two points that are made there. There’s one that, “You remind me of my former lover”, which is a confusing comment, in the context of being a confidant, someone who shared personal information with each other…
but also, at a professional capacity, as a manager, that he would remain isolated, in a certain position, but wasn’t ever going to be the best for his productivity and sense of – of wellbeing, in terms of what his special interests are in geo-information systems.
- Dr Zimmerman considered there were several factors that contributed to Dr Truffet’s heightened state when he first attended his rooms in April 2017. He acknowledged the police proceedings that occurred as a result of his visit to Ms Bengston’s home on 27 March 2017 were an important factor, but also considered the impact on Dr Truffet’s employment was a predominant factor. He explained that Dr Truffet suffered from emotion dysregulation, noting that as Dr Truffet’s stress increased, his ability to manage his emotions became impaired, noting:
I’d also like to draw your attention to the fact that Ms Bengston also brought criminal charges against Mr Truffet. And I’m not sure of how many people in the room have had criminal charges brought against them, but this would be significantly stressful for – for an individual. And then to have their – their – their area that they – they are a professional in, potentially compromised for the rest of their life is – is something I can’t even imagine.
Consideration and Conclusions
- At the conclusion of the Appeal proceedings, the Commission set down a timetable for the filing of writing submissions. In acknowledgment of the lengthy duration of the proceedings, the volume of evidence and the unrepresented status of the Appellant, both parties were provided with additional time to prepare and file written submissions.
- Dr Truffet filed submissions prepared by a firm of solicitors, but then went on to provide the Commission with additional submissions in the form of twelve separate documents with varying headings and content, that on occasions shifted the focus of Dr Truffet’s case, resulting in an extension or broadening of a number of the stressors he originally claimed had caused, or contributed to, the exacerbation of his Asperger’s condition. The Respondent filed submissions in response to the extra material.
- Although Dr Truffet represented himself during the proceedings and has clearly put in a substantial amount of effort in developing the submissions, it would be inappropriate for the Commission to consider those submissions insofar as they include additional stressors, or further materials that did not arise out of the substantive proceedings and which are not related to the events and stressors originally claimed by Dr Truffet at the commencement of the proceedings as contributing to the onset of his injury.
Is the injury one arising out of, or in the course of employment and is Dr Truffet’s employment the major significant contributing factor to the injury?
- In the absence of any other materials suggesting otherwise, I am satisfied Dr Truffet sustained a personal psychological injury in the form of an exacerbation of his Asperger’s condition on or around 22 March 2017, which is the date he claimed he suffered his injury in his opening submissions and the date on which he sent information to his employer about Asperger’s meltdowns and the need for some time off to re-set.
- In this Appeal, the Commission is required to consider whether the stressors identified at the commencement of the proceedings contributed to the aggravation of Dr Truffet’s Asperger’s condition.
- Although Dr Podagiel regularly saw Dr Truffet as a patient, he told the Commission that the first time Dr Truffet raised any concerns about his work was when he saw him on 24 March 2017. The appointment with Dr Podagiel followed a meeting between Dr Truffet and Esri's HR Manager, Ms Clauson on the same day.
- Ms Clauson arranged the meeting after being forwarded communication from Dr Truffet and his managers where he had referred to Asperger’s meltdowns and requested some time off. During their meeting, it was Ms Clauson who suggested to Dr Truffet that he may require some medical assistance. She agreed to his request to have a break and raised the need for him to obtain a medical clearance to return to work.
- Dr Podagiel issued a standard medical certificate giving Dr Truffet some time off work. Dr Podagiel recalled Dr Truffet telling him that he felt “he’d not been able to maintain
appropriate professional boundaries because of what the other person had shared with him.”
- Up until 12 April 2017, Dr Podagiel’s understanding was the primary areas of concerns for Dr Truffet related to intimate details Ms Bengston had shared with him. He hadn’t ascribed much seriousness to the seating issue, but on reflection considered Dr Truffet’s concerns about his seating may have formed part of the stressors.
- The report of Dr Zimmerman which was dated 16 April 2018 highlighted the significant confusion and stress Dr Truffet suffered in circumstances where his line manager disclosed personal information. The report concluded Dr Truffet’s injury could be explained by Dr Truffet’s confusion over what he considered to be a dual role with his line manager along with professional isolation and underutilisation in the workplace. Having regard to the information he’d been provided by Dr Truffet about his interaction with Ms Bengston, he considered she should have set in place ‘a much greater set of professional boundaries’.
- Dr Zimmerman considered there were several factors which contributed to Dr Truffet’s heightened state when he first attended his rooms on 6 April, 2017. However, it is clear from his responses during cross-examination that he considered the police stalking charges and legal proceedings that followed Dr Truffet’s uninvited visit to Ms Bengston’s home as having a significant impact on Dr Truffet’s condition.
- The difficulty I have with the opinions of both Dr Podagiel and Dr Zimmerman and their views about the contributing factors to Dr Truffet’s injury, is that they have based their opinions on a history of events given to them by Dr Truffet, without the benefit of the emails, text and other materials before the Commission that highlight the true nature of the relationship and interactions between Dr Truffet and Ms Bengston.
- Having considered Dr Truffet’s evidence and submissions, along with all the other materials before the Commission, I also have some concerns that Dr Truffet’s perception or interpretation of a number of his conversations or interactions with Ms Bengston; upon which he relies to support his claims about her unprofessional conduct, at times did not align with the reality of what transpired between the pair.
- In his evidence, Dr Zimmerman focuses heavily on the dual role Dr Truffet perceived he held as both a subordinate and a confidant of Ms Bengston. Dr Truffet maintains he became distressed as a result of Ms Bengston’s over-sharing of her personal life and experiences with workplace bullying. In my view, neither of those positions accords with what actually transpired in workplace, given:
- (a)Dr Truffet acknowledged during the proceedings that he welcomed his interactions with Ms Bengston up until 21 March 2017. As such, I can’t be satisfied that Ms Bengston’s sharing of her personal life caused him any distress and contributed to the aggravation of his Asperger’s condition up until this point.
- (b)I am also not persuaded their discussions could be characterised as Ms Bengston ‘over-sharing’. Ms Bengston was an empathetic and compassionate Manager. When attempting to assist Dr Truffet with his personal challenges, she drew on her
own experiences to show him she was supportive and understanding of his situation.
- (c)Although Ms Bengston acknowledged during the proceedings, that on reflection, she possibly could have dealt with the situation differently, it is relevant to consider that Managers and/or supervisors are not always perfect.
- (d)On occasion, I accept Ms Bengston shared personal details about her life, but I am not satisfied Dr Truffet felt overwhelmed or distressed when this occurred. If anything, the evidence suggests he welcomed and regularly sought out Ms Bengston’s company. He clearly enjoyed their interactions. On his own evidence, Dr Truffet acknowledged there was no causal connection between any distress he exhibited and their interactions.
- (e)Dr Truffet’s evidence is that it was not until March 2017 that he became distressed as a result of Ms Bengston’s conduct, however it is clear Ms Bengston did not over- share or divulge aspects of her personal life during or after that period. If anything, the evidence is that she became increasingly uncomfortable when Dr Truffet continued to press a desire, on his part, to deepen their friendship and spend more time together outside of work.
- (f)Although Dr Truffet acknowledged he understood Ms Bengston’s position and would take a step back, he persisted in his requests to organise coffee and meet outside of work. He also continued to attempt to draw Ms Bengston into communication about personal, non-work matters. Ms Bengston become more cautious in her interactions with Dr Truffet advising that she did not want to meet with him outside of work.
- (g)It was not until after Ms Bengston communicated to Dr Truffet that she did not want to interact with him outside of work on 27 February 2017 and then again was forced to revisit the issue on or around 22 March 2017 in response to ongoing concerns about Dr Truffet’s conduct, that he started making comments or inquiries about moving out of Ms Bengston’s team and transferring to another office.
- (h)It was around this point that it appears Dr Truffet became distressed and possibly embarrassed, having recognised he had over-stepped the mark and read too much into their friendship.
- Both Dr Podagiel and Dr Zimmerman considered the seating issues (and by extension an alleged lack of consideration for his Asperger’s condition), contributed to Dr Truffet’s rising stress levels. In the absence of any other medical evidence suggesting otherwise, I am prepared to accept that Dr Truffet become distressed in February 2017 when he realized Ms Bengston was not going to accede to his request to move into the Hosted Services area.
- For the reasons set out below, I am satisfied Ms Bengston’s decision not to move Dr Truffet to Hosted Services, was not the major significant contributing factor in the exacerbation of his Asperger’s condition.
- Having regard to the actual timeline of events and the initial comments made by Dr Truffet to Dr Podagiel on the 24th of March 2017 and later to Dr Zimmerman on 6 April 2017, it seems more likely that the major significant contributing factor was Dr Truffet’s difficulty accepting Ms Bengston did not want to take their friendship to a deeper level, his distress and possible embarrassment that he had over-stepped the mark, along with a desire on his part to explain his situation to Ms Bengston. Dr Zimmerman explained to the Commission:
… you and I, as neurotypical people, without an autism spectrum disorder, might be able to piece all this together, but the context of what was going on for David, in terms of his professional isolation, this desperate desire, almost obsessional in nature, which describes the traits of ASD, to communicate to Ms Bengston what was going on for David, at the time, he did not feel that he was able to communicate in a work context and the only way to do this was outside of this work context.. (my emphasis)
- Dr Truffet acknowledged during the proceedings that it was not uncommon for him to have an Asperger’s meltdowns. He explained he did need a bit of time out, but would then re-set and get on with his life. It is clear his stress levels significantly increased above and beyond his normal meltdown levels, in the wake of his uninvited visit to Ms Bengston’s home on the evening of 24 March 2017 and the subsequent decision by police to lay stalking charges against him.
- Even if I was to be wrong in terms of my view about the major significant contributing factor in the exacerbation of his Asperger’s condition, I am satisfied the decision not to seat Dr Truffet with Hosted Services was reasonable, given:
- (a)Dr Truffet was engaged in December 2015 to provide high level application support and guidance across the Customer Care Team, which included the Hosted Services area. At the time he transferred to the Customer Care team Dr Truffet highlighted to Ms Bengston that he suffered from Asperger’s, noting that it was well managed. I accept Dr Truffet requested additional support during those discussions. I am satisfied Ms Bengston considered and addressed Dr Truffet’s requests for additional support at the time he transferred into her team.
- (b)In mid-August 2016 and again in early February 2017, Dr Truffet formally communicated a desire to move to his ‘Sheldon’s Spot’, within the Hosted Services area. Although I accept Dr Truffet may have made some passing comments to other staff about moving to Hosted Services on occasion, I am not satisfied he repeatedly requested, in any meaningful sense, to move into the area between August 2016 and February 2017.
- (c)It is clear Mr Smith and Ms Bengston were both cognisant and alive to the issues raised by Dr Truffet in terms of his seating requests and his Asperger’s condition, but there were valid and genuine reasons why both Managers determined the Hosted Services team was not an ideal location for him to be seated, particularly
given Dr Truffet had previously communicated concerns about kitchen noise, foot traffic and social and sensory overload.
- (d)Together, Ms Bengston and Mr Smith promptly identified a suitable location within Office Space 5 in mid-August 2016, which addressed the sensory and social overload issues Dr Truffet raised at the time. The desk he elected to sit at was not the only option provided to Dr Truffet. It may well have been Dr Truffet’s preference to sit in the Hosted Services area, but I am not persuaded the decision by Mr Smith and Ms Bengston to seat Dr Truffet elsewhere was unreasonable at that point in time.
- (e)By February 2017, Ms Bengston had become understandably concerned about Dr Truffet’s motivation for wanting to sit with the Hosted Services team (an area where she also sat), having been the recipient of a number of texts and emails from Dr Truffet which made her feel uncomfortable.
- (f)Ms Bengston’s concerns about the nature of Dr Truffet’s communication, were a consideration in her decision to decline Dr Truffet’s request to move into the Hosted Services area in February 2017. Other factors such as the level of noise, proximity to the kitchen and a suggestion that a senior manager may wish to spend some time in the area also featured in her consideration of his request. I am not persuaded Ms Bengston’s decision to decline Dr Truffet’s request to move into the Hosted Services area for those reasons, was unreasonable.
- Aside from the fact that there is limited, if any meaningful medical evidence highlighting a causal connection between the exacerbation of his Asperger’s condition and the remaining stressors identified by Dr Truffet, I make the following comments:
- Stressor Two: Underutilisation, from August 2016;
- (a)Although I accept Dr Truffet may have resolved many of the complex issues plaguing the Customer Care group by late 2016, it is not clear to the Commission how Dr Truffet considers he was under-utilised in his role. There is also no meaningful evidence that demonstrates how his utilisation declined during the relevant period.
- (b)Dr Truffet flagged a desire to move into Professional Services and set about making inquiries about what processes he would be required to follow to initiate a transfer into another office in March 2017.
- (c)It is worth noting that Dr Truffet’s requests to move out from under Ms Bengston’s management and into a different area/office followed communication between the pair, where she explained to Dr Truffet she was not agreeable to meeting with him outside of work, lest he construe the interaction as a move towards a non-platonic relationship. In the course of communicating her position, she highlighted any non- work interaction would be inappropriate given their reporting relationship.
- (d)A finding that Dr Truffet was underutilised is not reasonably open to the Commission.
- Stressor Three: Professional isolation, from August 2016
- (a)In his role, Dr Truffet was responsible for providing application support and technical assistance that extended beyond just supporting Hosted Services.
- (b)Although he was seated away from Hosted Services, I am not persuaded he was prevented from interacting with the team in a professional or technical sense. The evidence indicates Dr Truffet continued to assist Hosted Services and other team members within the Customer Care group in the period from August 2016.
- (c)It may well be the case that Dr Truffet aspired to move into a role with Hosted Services and work on the cloud infrastructure projects. It may also be the case that the Hosted Services projects were, in his opinion, better aligned with his autistic special area of interest, however Ms Bengston’s resistance to him sitting with the Hosted Services team (for the reasons I have determined previously) does not, in my view, equate to him being professionally isolated.
- (d)The materials before the Commission indicate Dr Truffet continued to provide assistance and support across the group, utilising his skills and experience to assist Hosted Services as well as other groups from August 2016.
- Stressor Four: Prevented from undertaking role, from August 2016
- (a)There is no evidence before the Commission that supports Dr Truffet’s assertion he was prevented from undertaking his role. If anything, the evidence is that he was a valued team member who was actively sought out and encouraged to assist the group with complex and technical issues.
- (b)Dr Truffet’s request to move to Professional Services came after Ms Bengston declined to interact with him outside of work and in circumstances where she made it clear she did not want to engage with him outside the workplace.
- (c)Putting the reasons for his request to one side, when Dr Truffet made inquiries as to whether he may be able to move offices and undertake consulting work for Professional Services, his requests were not rejected. Instead Mr Smith encouraged Dr Truffet to demonstrate the value to the business. Ms Clauson was also open to re-visiting the idea when Dr Truffet returned from leave. Mr Smith also made some suggestions about other opportunities in the Perth and Canberra Esri offices.
- (d)A finding that Dr Truffet was prevented from undertaking his role and was restricted access to what he maintains is his autistic special interest area is not open to the Commission given the lack of evidence in support of the assertion.
- Stressor Five: Divulgence of Workplace Bullying
- (a)As part of Stressor Five, Dr Truffet maintains he was exposed to workplace bullying in circumstances where Ms Bengston divulged her concerns about Mr Robinson’s management of both herself and Mr Smith. Essentially, Dr Truffet argues that he was exposed to workplace bullying due to his awareness of Mr Robinson’s reputation as a workplace bully.
- (b)Ms Bengston’s evidence is that members of her team may have observed her getting on the wrong side of Mr Robinson from time to time. She maintains that although that may have been obvious, she did not go to Dr Truffet for counselling or raise concerns about being bullied to Dr Truffet.
- (c)On balance, I’m not satisfied the evidence supports a conclusion that Ms Bengston divulged or over-shared information about Mr Robinson bullying her in such a way that it contributed to the exacerbation of his Asperger’s condition.
- (d)In any event, there is no medical evidence that any awareness Dr Truffet may have possessed about Mr Robinson’s management style led to the development of the appellant’s claimed injury.
- Having regard to the above findings, it is clear there are a number of stressors which have been found on the evidence, not to have been substantiated or to have been shown to be quite different in nature to the account provided by Dr Truffet to his medical practitioners and the Commission.
- Where allegations are found to exist without substance, the transactions cannot have contributed to the development of Dr Truffet's psychological condition.
- For all the foregoing reasons I am not satisfied there is a causal link between the nominated stressors and the exacerbation of Dr Truffet's Asperger’s condition.
- As such, I am not persuaded that Dr Truffet's employment was a significant contributing factor in the onset of his injury.
- Even if I were to be wrong on that point, I am satisfied that the management action taken by Ms Bengston and Esri in respect of the events in the period of August 2016 to March 2017 was reasonable and taken in a reasonable way.
- The appeal is dismissed, and the decision of the Regulator dated 30 May 2017 is confirmed.
- I make the following Orders:
- The appeal is dismissed.
- The decision of the Respondent dated 30 May 2017 is affirmed.
- The Appellant is to pay the Respondent's costs of and incidental to this appeal.
 Exhibit 31.
 T6-47, 30.
 Exhibit 84.
 Exhibit 3.
 Exhibit 2.
 T3-42, 40-45.
 Exhibit 83.
 T1-70, 15-20.
 T3-36, 5-20.
 T3-35, 1-5.
 T3-34, 20-40.
 T6-38, 25-46.
 T6-39, 25-30.
 Exhibit 19.
 Exhibit 5.
 Exhibit 6.
 T3-87, 5-10.
 Exhibit 19.
 T6-46, 33-36.
 T6-46, 40-41.
 T6-41, 40.
 T6-41, 43-46.
 Exhibit 32.
 Exhibit 42.
 Exhibit 6.
 T1-54, 38-40.
 T4-142, 1-10.
 T4-138, 1-5.
 T3-65, 25-33.
 Exhibit 8.
 T6-45, 14-20.
 Exhibit 8.
 T6-66, 25-45.
 Exhibit 8.
 Exhibit 8.
 T6-50, 34-40.
 Exhibit 8.
 Exhibit 32.
 T4-127, 20-25.
 Exhibit 8.
 T3-68, 1-10, 40-47.
 T3-69, 39-45.
 T3-71, 15-20.
 T3-74, 43.
 Exhibit 9.
 T3-78, 5-10.
 T3-75, 40-47.
 Exhibit 25.
 T3-73, 25-29.
 T3-83, 15.
 Exhibit 8.
 Exhibit 58.
 Exhibit 58.
 Exhibit 59.
 Exhibit 58.
 Exhibit 9.
 Exhibit 23.
 See paragraph 25 of this Decision.
 See paragraph 37 of this Decision.
 Exhibit 32.
 Exhibit 15.
 T1-68, 35-40.
 T1-94, 10-40.
 T1-75, 40-45.
 T1-86, 20-25.
 T3-82, 30-40.
 T3-74, 10-15.
 Exhibit 34.
 Exhibit 32.
 Exhibit 25.
 Exhibit 32.
 Exhibit 25.
 Exhibit 43.
 Exhibit 25.
 T6-111, 25-42, T6-112, 1-15.
 Exhibit 25.
 T3-80, 10-45.
 Exhibit 51.
 Exhibit 10.
 Exhibit 69.
 Exhibit 25.
 Exhibit 70.
 Exhibit 11.
 Exhibit 70.
 Exhibit 64.
 Exhibit 52.
 Exhibit 52.
 Exhibit 53.
 Exhibit 71.
 Exhibit 54.
 Exhibit 55.
 Exhibit 56.
 Exhibit 56.
 Exhibit 35.
 T4-78, 40-45.
 Exhibit 60.
 Exhibit 18.
 Exhibit 74.
 Exhibit 73.
 Exhibit 62.
 Exhibit 25.
 Exhibit 25.
 Exhibit 21.
 Exhibit 22.
 Exhibit 37.
 Exhibit 15.
 Exhibit 75.
 Exhibit 77.
 Exhibit 78.
 Exhibit 78.
 Exhibit 79.
 Exhibit 80.
 Exhibit 17.
 Exhibit 16.
 Exhibit 82.
 Exhibit 81.
 Exhibit 33.
 Exhibit 25.
 Exhibit 10.
 Exhibit 27.
 T2-55, 35.
 T2-56, 10-12.
 T2-56, 45-46.
 Exhibit 28; T2-57, 5-12.
 T2-57, 30-35.
 T2-59, 1-2.
 Exhibit 30.
 Exhibit 26.
 T2-54, 35-50.
 T2-61, 25-37.
 T2-55, 0-10.
 T2-60, 3-15.
 Exhibit 83.
 T6-13, 5-10.
 T6-10, 17-35.
 T6-11, 40-45.
 T6-5, 30-37.
 T6-5, 30
 T6-16, 26-40.
 T6-16 40-45, T7-17, 0-5.
 T6-17, 30-47.
 Ibid, 42-47.
 T6-18, 0-5.
 T6-28, 24-30.
 Church v Simon Blackwood (Workers' Compensation Regulator)  ICQ 31.
 Misevski v Q-Comp  ICQ 2 (C/2009/29).
 T6-16, 26-40.
 Adams v Simon Blackwood (Workers’ Compensation Regulator)  QIRC 055, 19-20.
 Vesna Misevski v Q-COMP (C/2009/29); Ouisi and Q-COMP (C/2013/4).
- Published Case Name:
Truffet v Workers' Compensation Regulator
- Shortened Case Name:
Truffet v Workers' Compensation Regulator
 QIRC 201
11 Dec 2019