Pirrone v Bostik Australia Pty Ltd [2024] VCC 11 (29 January 2024)

Last Updated: 22 February 2024

IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION

Revised Not Restricted Suitable for Publication

Case No. CI-22-01486

Josey Pirrone	Plaintiff
v
Bostik Australia Pty Ltd	Defendant

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	11 – 12 October 2023 22 November 2023 – 6 December 2023 14 December 2023
DATE OF JUDGMENT:	29 January 2024
CASE MAY BE CITED AS:	Pirrone v Bostik Australia
MEDIUM NEUTRAL CITATION:	[2024] VCC 11

REASONS FOR JUDGMENT
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Subject: WORKPLACE BULLYING – NEGLIGENCE – DUTY OF CARE

Catchwords: Psychiatric injury to plaintiff allegedly caused by exposure to bullying in the workplace – Whether alleged bullying incidents occurred

Legislation Cited:

Cases Cited: Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327, Stevens v DP World Melbourne (2022) VSCA 285, Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Judgment: Claim dismissed

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr John Simpson	Shine Lawyers
For the Defendant	Mr Daniel Masel SC Ms Victoria McLeod	Hall & Willcox

HER HONOUR:

THE HEARING

1. The hearing of this proceeding commenced on 11 October 2023 before a jury. On 12 October 2023 when the matter was temporarily stood down, the Court was informed that the plaintiff, Ms Pirrone, had become physically ill, was distressed and unable to continue giving evidence. The further hearing of the matter was adjourned until 16 October 2023 at Ms Pirrone’s request.
2. On 16 October 2023, the Court received a medical report from Ms Pirrone’s treating practitioner, Dr Shanaka Kodithuwakku, dated 15 October 2023. The report confirmed that when last at Court, Ms Pirrone had suffered a “panic attack associated with heightened anxiety”, and would not be fit to resume giving evidence for two weeks. On this basis the jury was discharged and the matter adjourned pending medical clearance being obtained for Ms Pirrone to resume her participation in the trial. Dr Kodithuwakku reported on 14 November that Ms Pirrone would be fit to continue giving evidence, but via videolink from home, on 22 November 2023. By consent, the matter was listed to resume as a cause on 22 November 2023.
3. When the hearing resumed on 22 November 2023, Ms Pirrone resumed giving her evidence via Zoom, and was cross-examined.
4. The plaintiff called a number of witnesses: Dr David Weissman, Josey Pirrone, Jimmy Papageorgiou, Vasil Jovanovski, Dr Meenal Aggarwal, Alice Ntobedzi, Dr Shanaka Kodithuwakku and Dr Brendan Heyman. The defendant called the following witnesses: Chris Chapman, Brian Powney, Andrew Lee Tet, Max Elliot, Matthew Stewart, Jami Moran, Jacqlyn Allen, Chris Stewart and Shaun Stewart.
5. After the conclusion of the evidence, the matter was adjourned to enable the parties to file written submissions. The hearing concluded on 14 December 2023, when counsel made their final oral submissions. I have considered all of the evidence and the oral and written submissions made by counsel.

BACKGROUND

6. Ms Pirrone is 55 years old, a divorced mother of two adult children. One of her children, Lucinda, is aged 31. She has schizophrenia and has lived with Ms Pirrone until some time in 2018, when she moved into supported accommodation. Ms Pirrone completed Year 11 at school and then worked in administration and transport and logistics administration. For the past 10 years she has been living with her partner, Nick. They have been together for 16 years.
7. She began working for the defendant, Bostik Australia, full-time in June 2013 as a Warehouse Despatch Officer, doing the morning shift from 7.00am to 3.00pm, Monday to Friday. She did not see or sign a Bostik Bullying Policy.^[1] She worked in a small office at the front of the Thomastown warehouse.^[2] Her duties consisted of manifesting and invoicing, and processing the paperwork brought to her by the pickers in the warehouse.
8. At first she worked in the office with her boss, Dean Best. In the morning, Jami Moran, a warehouse picker who dealt with exports, would attend the office for a few minutes to use the computer to release orders.
9. In 2013, Andrew Lee Tet became the warehouse manager, and he worked with her in the office until mid-2017. He managed both the warehouse and the office. He remained Ms Pirrone’s direct manager until she left Bostik. There was a small section in the back of the office which had a door and Mr Lee Tet moved to that section, leaving Ms Pirrone in the front of the office. Ms Pirrone dealt with stock pickers from the warehouse, with customers by phone, and with truck drivers who came in to pick up their loads. The windows in the office were sealed for health and safety reasons, but there was an internal sliding glass window for inquiries from drivers and so on. Pickers would bring their paperwork to the office and leave it in Ms Pirrone’s tray for processing. There were two air conditioners, one in the main section of the office, and another in the small section at the back of the office,^[3] which ran continuously, and this was the only source of movement of air within the office.^[4]
10. Between 2013 and 2017, Ms Pirrone said the work environment in the office was “great”.^[5] She loved the people, the atmosphere, the way all of the staff (from the office, warehouse and from finance) communicated.^[6] Ms Pirrone knew Chris Stewart then as a warehouse picker as he would come to the office frequently with his paperwork.
11. In mid-2016, Chris Stewart was promoted to warehouse supervisor, Mr Lee Tet moved to another area of the warehouse, and Chris Stewart took his place in the office with Ms Pirrone. They got on very well. Chris Stewart used a computer to allocate available stock to fill orders, then released the orders for picking. He would then pass the paperwork to Ms Pirrone for manifesting and invoicing.
12. Chris Stewart has two brothers – Matthew and Shaun who also worked for the defendant. In early 2017, Matthew and Shaun Stewart were made team leaders at Bostik, and were allocated to work in the office with Ms Pirrone and Chris Stewart. Matthew and Shaun Stewart had work stations adjacent to Ms Pirrone. Brian Powney, the afternoon supervisor, would come in to the office each day at 2:00pm and would finish any work not completed by Ms Pirrone. Mr Lee Tet remained Ms Pirrone’s manager.
13. Ms Pirrone stated that in the beginning, it was good to have the three brothers in the office; she got along really well with them (as well as Mr Powney and Mr Moran) and they all respected each other.^[7] It was “a great environment”.^[8] Ms Pirrone alleges that things changed in the office from mid-2017. These matters are the subject of the allegations examined below.

THE PROCEEDING

14. Ms Pirrone claims damages in respect of mental injury she alleges she sustained as a result of fourteen “incidents” of bullying and “resulting workplace stress” she alleges occurred between early 2017 and May 2018 in the course of her employment by Bostik as a Warehouse Despatch Officer.
15. The Particulars of Injury are listed as: Chronic Adjustment Disorder with anxious and depressed mood; traumatisation features of, overall, moderate intensity;^[9] post-traumatic stress disorder; cognitive difficulties including lapses of memory and concentration; loss of libido; agoraphobia; panic attacks and/or panic disorder; anxiety; and depression.^[10]
16. The alleged “incidents” and her alleged “complaints” and “resulting workplace stress” are pleaded in paragraph 3 of her Amended Statement of Claim (‘ASoC’) and the accompanying Schedule A and are dealt with below. Taken together, the alleged incidents boil down to an allegation that between early 2017 and May 2018, Ms Pirrone’s co-workers – Chris Stewart, Matthew Stewart and Shaun Stewart – engaged in a campaign of repeated unreasonable conduct directed at her. The “incidents” and warning signs of stress are alleged to have been reported or exhibited by Ms Pirrone to her manager, Mr Lee Tet. Ms Pirrone’s case at trial was that Mr Lee Tet and the co-workers were engaged in a conspiracy to get her out of the office and terminate her employment with Bostik, or that Ms Pirrone thought so.
17. Ms Pirrone alleges her mental injury was caused by:

(a) Bostik’s breach of the duty it owed her to take reasonable care for her safety by providing a safe place of work for her and a proper and safe system of conducting her work and efficient supervision of such work;^[11] and/or

(b) negligence of Bostik, “its servants or agents and in particular Christopher Stewart, Matthew Stewart and Shaun Stewart”.^[12]

18. I note that Bostik accepts that Ms Pirrone suffered a mental injury (by way of a recurrence or exacerbation of an underlying mental condition) in late April 2018 and she found herself unable to cope with her employment. It says that the causes of that mental injury were a combination of:

(a) the stress and emotional toll upon her caused by ongoing and it seems escalating issues concerning her daughter, Lucinda;^[13]

(b) her own health issues, in particular diverticulitis and a salivary gland infection against the background of recently diagnosed hypothyroidism and ongoing experience of symptoms of perimenopause^[14] in a setting of fertility treatment and miscarriage;^[15]

(c) her mental health vulnerability;^[16]

(d) her unforeseen and unforeseeable response to the offer by her employer to accommodate her need to deal with challenges presented by Lucinda and her own health issues by exploring possible changes to her hours and duties.

Definition of “bullying”

19. Bostik had a policy entitled Bullying and Violence in the Workplace (“Bostik Bullying Policy”).^[17] The policy was said to be in force at least from around June 2012.
20. Clause 2 of the Bostik Bullying Policy states:

2 What is Workplace Bullying & Violence?

Workplace Bullying & Violence is repeated, unreasonable behaviour, directed towards a worker or group of workers that creates a risk to Health and Safety. It includes both physical and psychological risks and abuse.

‘Repeated behaviour’ refers to the persistent nature of the behaviour and can refer to a range or pattern of behaviours over a period of time (i.e., verbal abuse, unreasonable criticism, isolation and subsequently being denied opportunities – i.e. a pattern is being established from a serious of events).

‘Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten another person(s).

21. Relevantly, Clause 2.1 of the Bostik Bullying Policy states:

2.1 Examples of Workplace Bullying & Violence

Bullying behaviours can take many forms, from the obvious (direct) to the more subtle (indirect). The following are some examples of both direct and indirect bullying and violence.

Direct Bullying

[1] Abusive, insulting or offensive language;

[2] Spreading misinformation or malicious rumours:

[3] Behaviour or language that frightens, humiliates, belittles or degrades, including over criticising or criticism that is delivered with yelling or screaming;

[4] Displaying offensive material;

[5] Inappropriate comments about a person’s appearance, lifestyle, their family or sexual preferences;

[6] Teasing or regularly making someone the brunt of pranks or practical jokes;

[7] Interfering with a person’s personal property or work equipment; or

[8] Harmful or offensive initiation practices.

Indirect Bullying

[1] Unreasonably overloading a person with work or not providing enough work;

[2] Setting timeframes that are difficult to achieve or constantly changing them;

[3] Setting tasks that are unreasonably below or above a person’s skill level;

[4] Deliberately excluding or isolating a person from normal work activities;

[5] Withholding information that is necessary for effective work performance;

[6] Deliberately denying access to resources or workplace benefit and entitlements, i.e. training or leave;

[7] Deliberately changing work arrangements, such as rosters and leave, to inconvenience a particular worker or workers.

..........

The above examples do not represent a complete list of bullying...behaviour(s). They are indicative of the type of behaviours which may constitute bullying ....

A person’s intention is irrelevant when determining if bullying has occurred. Bullying can occur unintentionally, where actions which are not intended to victimise, humiliate, undermine or threaten a person actually have that effect.

.......

22. There was no agreement between the parties in this case to adopt the definition of “bullying” set out in that policy. However, in accordance with the reasoning of the Court of Appeal in Lloyd v Healthscope Operations Pty Ltd^[18] and as submitted by the defendant, I propose to treat the definition of bullying set out in Bostik’s policy as a reasonable working definition of workplace bullying against which allegations made by a plaintiff might be objectively analysed. In other words, the threshold issues are, firstly, whether there was unreasonable behaviour directed towards the plaintiff (that is, behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten her); and, secondly, if there was, did it occur repeatedly.
23. I have considered all of the evidence before me in order to determine whether Ms Pirrone has made out her (fourteen) allegations of bullying. This is a threshold issue, and I deal with it first.

General submissions of counsel in relation to bullying allegations

24. As a general proposition, it was submitted by counsel for Ms Pirrone that she gave “credible and reliable evidence” concerning the fourteen incidents of bullying, her complaints made to Mr Lee Tet and Ms Allen, and the resulting workplace stress, physical and psychological consequences for her as outlined in the Schedules.^[19] It was submitted that Ms Pirrone’s account of the alleged incidents (along with the evidence of her two witnesses in relation to Incident 1) is to be preferred wherever it differs from that of Bostik’s witnesses.
25. Bostik denies the “incidents” occurred, save that in answer to the alleged “fourteenth incident”, it accepts that Ms Pirrone “was provided with the opportunity to trial a new position” and says “the trial was not a permanent change in position”.^[20] It says that this offer was not a wrong perpetrated against Ms Pirrone but rather the conduct of an exemplary employer.
26. Bostik agrees that there was a report by Ms Pirrone, most likely in late 2017, of flatulence, but says that management (through Mr Lee Tet) responded appropriately to the complaint. Otherwise, Bostik denies that any of the other alleged “incidents” were reported.
27. Bostik also says that, save for Ms Pirrone’s unforeseeable response to events that occurred in late April 2018 when she returned to work after an extensive absence, Ms Pirrone did not display ‘evident signs’ or ‘warning signs’ of a risk of mental health injury referrable to work issues. Bostik says that it was aware that Ms Pirrone was struggling with domestic issues but that it was not aware of any ‘warning signs’ referrable to her work. On the contrary, Bostik says that Ms Pirrone was perceived to be good at her job and to interact harmoniously with the others who worked in and from the office. She was well able to cope with work despite struggling with domestic issues. It says that Bostik was accommodating about the domestic duties involving her daughter, allowing Ms Pirrone to arrive late, leave early or be absent as required.
28. Bostik made extensive submissions concerning Ms Pirrone’s reliability as a witness.
29. On the facts, Bostik says there is no basis to find against the defendant on liability and Ms Pirrone’s claim should be dismissed.

Reliability of Ms Pirrone’s evidence

30. It was common ground that Ms Pirrone suffers from a psychiatric condition which either occurred or was exacerbated from late April 2018.
31. As indicated above, it was submitted on behalf of Ms Pirrone that her evidence was credible and reliable and, wherever at odds with the evidence of Bostik’s witnesses, ought to be preferred to their evidence.
32. It was submitted by the defendant that Ms Pirrone’s evidence was “extraordinarily unreliable”^[21] for a number of reasons. Firstly, that her account of her prior mental health to doctors,^[22] and to the Court,^[23] is at odds with clinical records showing prescriptions for antidepressant medication in 2005, 2006, late 2011, and 2015, as well as a panic attack in August 2013. Secondly, that her accounts to doctors and to the Court of alleged events at work and her subsequent mental state was couched in extravagant language. Thirdly, that in histories given to various examiners and her evidence, she has transposed significant events that occurred in the context of her attempt to deal with issues arising from her relationship with Lucinda, and attributed them to the now contended work issues. Fourthly, that critical aspects of her evidence were “wholly irrational or contradictory”^[24] and therefore “glaringly improbable”.^[25] This was particularly the case in relation to her claim that the warehouse office was a toxic workplace which was dramatically affecting her health, which was inconsistent with her attachment to her role as was documented in emails to Mr Lee Tet in May 2018 and conveyed in her oral evidence.
33. On the authorities,^[26] where there is consensus of medical opinion that the plaintiff had suffered a mental injury that arose out of his or her employment, it is appropriate to consider the possibility that any exaggeration, or lack of reliability in the plaintiff’s evidence, might have been the product of the mental injury that arose in the course of the plaintiff’s employment. A hallmark of cases of the present kind is that the evidence given by a plaintiff with a mental injury is often affected by the condition from which the plaintiff is suffering (and sometimes in critical respects). For that reason, such evidence may be less reliable than evidence that might be given in another case by a person in normal mental health.”^[27]
34. I accept that Ms Pirrone was genuine in the expression of her emotions and in her attempt to honestly recollect the events of 2017 and 2018. However, I consider that Ms Pirrone’s presentation during the hearing, and the evidence she has given, were affected by the condition from which she suffers and has suffered since 2018. I consider that much of her evidence was presented through the lens or prism of her psychological condition, both in 2018 and now, and this affected her reliability.
35. In particular, I note her contention, both to doctors and to the Court, that she did not have any psychiatric problems prior to April 2017, is in stark contrast to the clinical records which establish that: she was prescribed Zoloft for depression in 2005 after her divorce;^[28] in 2006 she was prescribed Zoloft for depression in the context of her father dying of renal cancer;^[29] that she appeared to have taken Zoloft continuously between January 2006 and December 2009;^[30] on 27 January 2011 she was said to have a past history of depression, had taken Efexor earlier in 2011 and was given a further prescription for Efexor^[31] for depression in a context that is not recorded and which Ms Pirrone could not recall;^[32] there was an ambulance attendance on 29 August 2013 for a “panic attack” that felt like it was coming from her heart;^[33] that on 15 October 2015, in the context of her being sad for eight months and issues with Lucinda (who was in hospital due to psychosis),^[34] she was diagnosed with depression and anxiety and was prescribed with an anti-depressant medication (Cymbalta); in December 2015, she was again prescribed Cymbalta for “anxiety” and “depression” in the context of stress in relation to Lucinda;^[35] on 14 December 2017, she reported broken sleep, ongoing issues with her daughter, and her need for time off work; on 6 May 2018 she reported, for the first time, “work related issues; New role with no definition, no job description makes her anxious.”^[36]
36. I note that Ms Pirrone’s response to these matters in cross-examination was to the effect that she did not like anti-depressants due to their side effects and would only take them for a few weeks.^[37] This does not mean of course that the symptoms resulting in the prescriptions were not depressive in nature.
37. I acknowledge that Ms Pirrone may be unsophisticated in her understanding of her own psychological processes. This much is demonstrated by her evidence that when asked by doctors about her psychiatric history that she thought psychiatric problems meant madness or going crazy and that she may have been depressed in the context of worrying about her psychotic daughter, but this did not mean she was mad because she was still able to work up to two jobs.^[38]
38. Another example of her evidence being affected by her mental health condition is that her accounts to doctors and her evidence to the Court of alleged events at work and of her subsequent mental state was often couched in extravagant language and infused with a strong sense of anger and injustice at what she claims or perceives occurred to her. For example, she told the Court that one of the alleged incidents of bullying – intentional flatulence occurred frequently over many months (which the defendant denies) and that she “walked out [of the office] on every time that it – they farted”.^[39] I noted that such evidence is not consistent with other credible evidence that none of her co-workers passed wind in that office in her presence, and that, although the office was stuffy and smelly at times, it did not smell of flatulence.^[40]
39. Her anger, resentment and poor insight were noted by both Dr David Weissman and Dr Brendan Hayman.
40. Dr David Weissman reported:

“Her insight and judgment were difficult to gauge and assess. Her self-esteem and confidence appeared to be very low. She appeared to have an elevated responsiveness to various triggers and reminders of her work stress. Her levels of psychological and emotional insight, awareness and judgment seem to be partial, somewhat limited and coarse. She has some difficulty understanding her emotional reaction/response and her judgment is impacted by her anxious and depressed mood state, as well as grievances regarding her workplace.”^[41]

41. In addition, Dr Brendan Hayman noted:

“Her insight was partial. She had a rudimentary understanding of her issues.”^[42]

42. A further example is that it appears that in histories given to various examiners and in her evidence, Ms Pirrone has transposed significant events that occurred in the context of her struggle to deal with issues arising from her relationship with Lucinda and attributed them to now contended work issues. For example, she attributes crying at work to alleged “incidents”^[43] whereas she cried over matters concerning Lucinda.^[44] Her evidence of pulling over and throwing up whilst driving to a social event which occurred in consequence of ongoing significant stress in dealing with Lucinda^[45] became described as pulling over and throwing up on her way to work which she attributed to now contended work “incidents”.^[46]
43. I also note that there were aspects of Ms Pirrone's evidence which were either irrational or contradictory and therefore highly improbable.
44. For example, her evidence that the alleged conduct occurred and continued over an extended period and was making her sick^[47] and that she reported this to Mr Lee Tet but nothing changed or the behaviour got worse^[48] and that she complained to him that the farting continued (which Mr Lee Tet denied), is inconsistent with notes made by her treating psychologist, Fiona Dixon (a treating practitioner she did not call), on 18 June 2018 that after she reported the alleged farting [to Mr Lee Tet], it "ceased for 7 months (odd one here and there)".^[49]
45. Another example is her evidence which painted the warehouse office as a toxic workplace which was dramatically affecting her health. This is wholly inconsistent with her well documented (but, on the evidence, misconceived) concern that she had lost the opportunity to continue to work as a Warehouse Despatch Officer – work she loved,^[50] and which work was, of course, situated in the warehouse office alongside the Stewart brothers.^[51]
46. In the light of these matters, I have made allowance for the fact Ms Pirrone is mentally unwell and may be somewhat unreliable as a witness, and have considered, on the whole of the evidence, whether her account should be accepted.

Reliability of other witnesses

47. I consider that each of the witnessed called by the defendant was reliable. Each presented as a truthful witness, undented by cross examination.
48. Of all the witnesses, Andrew Lee Tet had the longest relationship with Ms Pirrone.^[52] He was her manager^[53] and although he worked in a different office in the 2017 to mid-2018 period, he attended the warehouse office daily and stayed for prolonged periods of time.^[54] He was one of the colleagues to whom Ms Pirrone confided issues concerning Lucinda and her own difficulties in dealing with Lucinda.^[55] Mr Lee Tet said:

I mean we had quite long conversations about her daughter having some mental issues. There – there would be – there was a time where her daughter actually I think came to our warehouse – like she doesn't have a licence, but she drove to the warehouse. And then obviously that distressed Josey quite a bit. But again, I felt as though – like I was totally understanding, you know. There'd been times where she'd have to take her back home, or she'd have to leave early for personal reasons for Lucy. Yeah, so – and we allowed her to do so. ^[56]

49. Mr Lee Tet gave fulsome and expansive answers.
50. Matthew Stewart estimated that he spent 50% of his time in the office.^[57] He clarified that he did not really “work with”^[58] Ms Pirrone and “didn’t speak to her a lot”.^[59] His evidence was straightforward. He admitted flatulence as a bodily function which he allowed to occur when no one was around and said that the office would smell from a variety of causes but firmly denied intentional farting. ^[60]
51. Chris Stewart gave his evidence in a straightforward manner. Apart from Mr Lee Tet, Chris Stewart appeared to be Ms Pirrone’s closest colleague. He was also aware of her issues with Lucinda.^[61] He made appropriate concessions regarding the limitations of his memory.^[62]
52. Shaun Stewart gave evidence in a straightforward manner.
53. Jackie Allen’s account of events in relation to the flatulence issue, the proposed alternative role and the meeting with Ms Pirrone on 1 May 2018 was direct, succinct, and firm in spite of extensive cross-examination.
54. Jami Moran gave straightforward evidence to the effect that Ms Pirrone had raised the issue of flatulence with him,^[63] but said that he had never “seen or smelt it”.^[64]
55. Chris Chapman likewise gave evidence in a straightforward manner.
56. Brian Powney was an uncomplicated witness. He made admissions to generalised hypothetical scenarios posited to him. He acknowledged when he could not recall events. He confirmed that he completed any work that Ms Pirrone did not complete in her shift.
57. Max Elliot’s evidence was short and uncontested. He said that he was in and out of the office at least half a dozen times a day for between a minute and half an hour. In all those times, he never smelt the smell of farting in the office.^[65] He said he did commence training Ms Pirrone when she sat with him, and tried to show her what he did on the computer.

Witnesses not called

58. I note that, without explanation, Ms Pirrone has not called (or in the case of professionals, sought to tender reports of):

(a) Her partner Nick (with whom she has lived for the past 10 years and who had quite frequent communications with the defendant in relation to Ms Pirrone’s issues and fitness for work ) in relation to her condition before and after and the alleged incidents as well as to her contemporaneous response to the alleged incidents;

(b) Her first treating psychologist, Fiona Dixon (although part of her notes is in evidence);^[66]

(c) The counsellor who, according to Ms Allen, Ms Pirrone was seeing in relation to issues arising from her care of or interactions with Lucinda.^[67]

59. I note Ms Pirrone’s evidence that she only saw Ms Dixon on a few occasions and did not find her helpful. However, Ms Dixon’s records indicate that there were six sessions of counselling.
60. I consider that each of the above persons may be expected to have been in a position to give relevant evidence and who, given the matters in issue in the case, the plaintiff would have been expected to call. I infer that nothing they could have said would have assisted the plaintiff’s case.^[68]

THE ALLEGED INCIDENTS – EVIDENCE, SUBMISSIONS AND FINDINGS

Alleged incidents of direct bullying by the Stewart brothers– Incidents 1-4^[69]

Incident 1: Intentional and persistent flatulence created by them within a small office on a regular basis – which they found hilarious from passing wind in confined office space with few, if any, windows to ventilate and which flatulence persisted, despite the Plaintiff’s request for them to stop.

Incident 2: The workers humiliated the Plaintiff by teasing and making her the brunt of a practical joke insofar as they claimed she was to blame for the offensive odours when drivers and other workers entered the office.

Incident 3: The workers laughed at the Plaintiff when she had to leave the office because of the smell of the offensive odours.

Incident 4: The Plaintiff could not eat within the small office or feel comfortable at her computer desk because of the persistent flatulence and resulting offensive odours.

61. Ms Pirrone gave evidence that once Matt and Shaun Stewart joined the office, there was farting in the office “sometimes on a daily basis”^[70] and “it made me sick”.^[71]
62. Ms Pirrone could not identify who was allegedly passing wind,^[72] nor could her witnesses Mr Papageorgiou^[73] or Mr Jovanovski.^[74] However she said she thought it was very unlikely to be Chris Stewart.
63. She disagreed with the proposition that the farting was only on a handful of occasions.^[75] Her case was clearly put on the basis that the alleged flatulence in the office was frequent, persistent and intentional.
64. She said that she told her co-workers that if they didn’t stop farting, she would speak to Mr Lee Tet. She said that they found it funny and would sometimes blame her for the smells. They would say she was the one who farted especially if there was a driver at the office window or when someone from the warehouse came in. Sometimes they would literally fart as they walked out the office door and laugh. The disgusting odours which Ms Pirrone said “sometimes I could smell it on my ”^[76] also caused her to leave the office because of them and to no longer eat at her office desk.^[77]
65. Shaun Stewart explicitly denied intentionally farting in the office.^[78]
66. Ms Pirrone said she complained to Mr Lee Tet on several occasions that the Stewart brothers were farting in the office and it was making her sick in January, February, March, and April 2017.^[79] She said:

I’d always go and see him and tell him what was going on, that nothing has changed, if anything it got worse. I told him that I was going home crying, I told him I didn’t want to be at work anymore. I told him they were rude. I told him everything and he used to say to me, ‘I’ll bring it up at the next team leader meeting and I’ll address it then’, but it never changed. It never stopped.^[80]

67. Mr Lee Tet said that Ms Pirrone complained to him once about this issue, in the twelve months before she left Bostik. He said she did not complain to him that the male colleagues in the office were blaming her for the smell of flatulence. After her complaint, he spoke to each of the men who worked in the office with her. They denied farting in her presence. He said he told them that if it was happening, it had to stop.
68. It was common ground that a toolbox meeting was held by Mr Lee Tet on 23 January 2018 outside the office at which the need for “respect of work mates” was raised by him. The meeting was attended by some eleven workers including Matthew, Shaun and Chris Stewart.^[81] Mr Lee Tet said that because he had spoken about the flatulence allegation to each of the men who worked in the office, before the tool box meeting, he did not mention “farting” at that tool box meeting. He said that after the tool box meeting, Ms Pirrone did not raise the flatulence issue with him again.
69. In cross-examination, he agreed that if there had been persistent flatulence by one or more of the Stewart brothers in the office in Ms Pirrone’s presence, this would be disgusting, rude, disrespectful, humiliating to her, belittling and degrading.^[82]
70. Likewise, HR director Jackie Allen accepted in cross-examination, that a complaint of flatulence on more than one occasion in a small office of that kind might suggest that the offending worker was being disrespectful of a co-worker. ^[83]
71. The plaintiff relied on the concessions made in this regard by Mr Lee Tet and Ms Allen. It was submitted that Mr Lee Tet’s admission that Ms Pirrone complained to him about flatulence (alleged bullying incidents 1-4), and the steps which he took thereafter, boosts Ms Pirrone’s reliability in relation to that complaint as well as to the other alleged bullying incidents.
72. It was submitted on behalf of Ms Pirrone that her two former co-workers, Jimmy Papageorgiou and Vasil Jovanovski, each gave credible and reliable evidence “consistent with the small unventilated office not providing a safe and healthy environment because of the offensive odours which they each attributed to flatulence”.^[84] It was submitted that Matthew Stewart’s evidence to the effect that he had passed wind in the office when no-one was present but then someone could come in to the office suggests that he was likely to have been “the leading perpetrator”^[85] of this offensive behaviour.
73. The defendant conceded that the office could get stuffy. It was widely acknowledged that the office was a busy one, with warehouse staff and staff from other departments entering and exiting throughout the day.^[86] However, Mr Chapman,^[87] Mr Powney,^[88] Mr Lee Tet,^[89] Mr Moran,^[90] Chris Stewart^[91] and Shaun Stewart^[92] (all of whom either worked in, or frequently visited, the office) all denied smelling flatulence in the office. Matthew and Shaun Stewart both referred to alternative sources of smells, including body odour,^[93] spoiled milk[,]9494 T881/4-7; T967/13-18. cologne^9[95]and dead crickets in the ceiling lights.^9[96]Matthew Stewart conceded that everyone farts.^9[97]He said that he had farted in the office on occasion when there was no-one present, but it was possible that someone entered the office shortly afterwards. Shaun Stewart explicitly denied intentionally farting in the office.^9[98]Although none of the witnesses mentioned it, I note the possibility that there was a lingering odour from an occasional unintended fart. However, even if this were to have occurred, it would not make out Ms Pirrone’s case.
74. Ms Pirrone gave further evidence that the Stewart brothers would tease her and blame the flatulence on her when drivers and other workers entered the office.^[99]
75. Matthew Stewart denied ever breaking wind as he exited the office and laughing,^[100] or seeing Chris or Shaun Stewart do this.^[101] Matthew and Shaun Stewart both denied blaming any flatulence on Ms Pirrone,^[102] or overhearing others blame her.^[103] Mr Lee Tet denied that Ms Pirrone ever reported being blamed for flatulence in the office.^[104] Neither Mr Papageorgiou nor Mr Jovanovski gave evidence to this effect. The defendant submitted that this 'incident' did not occur.
76. Ms Pirrone claimed she frequently had to leave the office due to the flatulence smell and that the Stewart brothers would laugh at this.^[105] She alleged that she was unable to eat at her desk due to the alleged smell.^[106] No evidence from Mr Papageorgiou or Mr Jovanovski was adduced to this effect.
77. Chris Stewart denied ever witnessing Ms Pirrone being blamed for flatulence by others,^[107] being aware of Ms Pirrone allegedly leaving the room because of the smell,^[108] or ever seeing Ms Pirrone not being able to eat at her desk.^[109] Shaun Stewart denied similar propositions put to him.^[110] Mr Lee Tet denied that Ms Pirrone reported these complaints to him^[111] and said that he would have recorded them in his diary if she had done so. He said that Ms Pirrone could eat her lunch in the lunch room or outside in the smoking area where she spent much of her free time; that there was a food van twice per day, and shops nearby. Mr Jovanovski^[112] and Chris Stewart^[113] also reported that, at times, Ms Pirrone would take her lunch outside and eat in the smoking area.
78. The defendant submitted that these ’incidents’ (and any alleged report of them) did not occur.
79. I found the evidence of Mr Papageorgiou and Mr Jovanoski of limited assistance, as neither of them described seeing, hearing, or smelling any person passing wind in the office, let alone in the presence of Ms Pirrone.
80. I prefer the evidence of the defendants’ witnesses to that of Ms Pirrone in relation to this allegation. Even if the office was stuffy and smelt bad (due, among other things, spilt sour milk under the fridge and dead crickets in the ceiling lights)^[114] and on occasion when nobody was about, Matthew Stewart passed wind, there was no evidence before me capable of satisfying me that there was a persistent passing of wind in Ms Pirrone’s presence, directed at her, in the office by any of the Stewart brothers or any other Bostik employee. I am also not satisfied on the whole of the evidence that the workers humiliated Ms Pirrone by teasing her and blaming her for the offensive odours; nor that they laughed at her when she left the office because of the smell of the offensive odours; nor that she could not eat in the office because of the persistent flatulence and resulting offensive odours.
81. For these reasons, I am not satisfied that incidents 1-4 are made out.

Other unprofessional behaviour by the Stewart brothers – Incidents 5-6

Incident 5: Further unprofessional behaviour amongst the Chris Stewart, Matthew Stewart and Shaun Stewart in the presence of the plaintiff involving humiliating and indecent exchanges within the confines of the small office including private jokes and clowning around in front of truck drivers/ customers, saying, for example, “he liked you and thought you were pretty”.

Incident 6: The workers disrespectfully failed to respond to the plaintiff’s requests to keep their objectionable noise and banter down by giving her the ‘silent treatment’.

82. Ms Pirrone alleged that that the office became “extremely loud”.^[115] This included “giggling” and “joking”.^[116] Chris and Shaun Stewart^[117] allegedly made repeated^[118] comments to her regarding truck drivers, including “oh, he thought you were pretty” and “oh, look at the way he was looking at you, he thought you were nice”.^[119] Her evidence was that she thought these comments were “silly”^[120] and that she would “laugh it off”^[121]. Ms Pirrone, through her counsel, accused the Stewart brothers of ‘clowning around’ in the office.
83. Ms Pirrone said in late 2017 to early 2018, she told Andrew “how stressed I was”^[122] and that she had nearly walked out twice. She returned in February 2018 to speak to Mr Lee Tet because “nothing was changing in the office in regards to the flatulence, excess use of mobile, not being in the office ... not attending to emails, answering phone calls”^[123]. She also told him they were “acting silly in the office”.^[124]
84. Ms Pirrone alleged that this changed “in the middle of 2017-2018” when she was then given the “silent treatment”^[125] in the office and she would “sit there and practically not talk to anyone in the office apart from warehouse employees and drivers”.^[126]
85. Matthew Stewart^[127] and Shaun Stewart^[128] denied making such comments. Chris Stewart admitted hearing like comments, but only spoken by Ms Pirrone herself.^[129] The evidence of the Stewart brothers was to the effect that the office was a busy environment and there was banter and joking between the workers, and that Ms Pirrone actively participated in this jovial culture.^[130]
86. Mr Lee Tet denied that Ms Pirrone ever made complaints to him about these matters, and said that if she had he would have noted them in his diary.^[131] He denied that she described the office to him as “a circus”.^[132] He said that whenever he visited the office (which he did about six times per day), he did not experience any bad smells,^[133] there was laughter and carrying on, with Ms Pirrone more than involved with joking and bantering,^[134] and work was getting done. He did not have any concerns about the operation of the office,^[135] and was never concerned that any banter in the office might become unprofessional.^[136]
87. He denied receiving any complaint from Ms Pirrone about the behaviour of staff in the office when he was away over Christmas 2017 to 2018. He said that he had a good relationship with her and insisted that if she had complained to him about the Stewart brothers’ behaviour (making practical jokes about farting, laughing at her and blaming her for the farting, clowning around, making comments about truck drivers liking her), he would have dealt with her complaints.
88. The evidence of Chris Stewart in this regard was that that there was a period when the office became quieter (“the banter started to slip away”^[137]) which coincided with Ms Pirrone confiding in himself and Shaun Stewart about “troubles” she was having at home. He explained:

And then we felt as though it's probably not the right time to – to be joking about anything in general.^[138]

89. Ms Pirrone complained that the brothers (in particular, Chris Stewart) would be out of the office for long periods of time.^[139] On the evidence of each of the brothers and that of Mr Lee Tet, the Stewart brothers’ roles were not exclusively office-based.^[140] They spent varying amounts of time in the office^[141] but the nature of their employment duties required them also to work in the warehouse.^[142] On the evidence, I consider that their absence from the office was dictated by work demands.
90. On the whole of the evidence, I am not satisfied that these alleged incidents are made out.

Threatening the plaintiff’s employment – Incidents 7-8

Incident 7: Shaun Stewart made comments threatening the plaintiff’s role and job by saying: “You better watch your job”; and “You will be the next one to go”.

Incident 8: Shaun Stewart heckled the plaintiff about her lack of job security with the defendant and laughed in a humiliating, belittling and degrading manner at her when she became distressed from this type of language

91. Ms Pirrone gave evidence that Shaun Stewart walked past her and said: “it’s sad that such and such, ... got put off on the same day”^[143] followed by “You’d better watch your job because you’ll be next” ^[144] and further said to her “oh, we’re getting rid of the wogs.”^[145] Ms Pirrone said this made her feel “like, am I going to be told at any moment to leave.”^[146]
92. Ms Pirrone alleged that Shaun Stewart laughed at her when she became distressed at his comment.
93. It was common ground that during the period of these alleged comments, there were retrenchments occurring in the Thomastown warehouse. According to Christopher Stewart, these retrenchments only related to workers on the warehouse floor.^[147]
94. Ms Pirrone said she responded to these alleged comments of Shaun Stewart by saying “Why don't you worry about your own job?”^[148]
95. Ms Pirrone disagreed with the proposition that if Shaun Stewart made these comments, he did so in a “playful”^[149] manner. She agreed that Shaun made these comments “only a couple of times”.^[150] She acknowledged that Shaun was not her boss and could not terminate her employment.^[151] She also agreed that Mr Lee Tet did not tell her that her job was at risk^[152] and that her job had not been threatened by management.^[153]
96. Shaun Stewart denied making these comments^[154] or heckling Ms Pirrone about a lack of job security.^[155] Chris Stewart denied any recollection of anyone making these comments.^[156] He further explained that the redundancies that were taking place at Bostik were made in relation to the “guys on the floor” in the warehouse and that they were “union based”.^[157] Matthew Stewart gave evidence that he had heard such comments, but that they had come from Jami Moran.^[158] He otherwise denied hearing Shaun ‘heckle’ Ms Pirrone about her job security.^[159]
97. The defendant submitted that on the whole of the evidence the seventh and eighth “incidents” are not made out. The defendant further submitted that even if the Court were satisfied that Shaun Stewart spoke words to the effect alleged in the “seventh incident”, they were more likely spoken as banter and not spoken in a tone or context capable of giving rise to a recognised mental injury. The defendant submitted that Ms Pirrone’s complaint related to words spoken that gave rise to a mental injury, not to the workplace undergoing change where redundancies were occurring and that fact giving rise to mental injury.
98. On the whole of the evidence, I am not satisfied that Shaun Stewart made a threat to Ms Pirrone’s employment nor that he teased her about her job security. This allegation is not made out.

Incidents of indirect bullying:

a) Increased workload pressure – unreasonable overloading

Incident 9: Chris Stewart would not assist the plaintiff when she asked for help (too busy) – the bulk of work was falling to the plaintiff who fell causing her to fall behind her usual timeframe for completing work with an increased workload.

Incident 10: Chris Stewart failed to assist the Plaintiff by not distributing the workload within the small office in a fair and even manner, requiring her to work over and above her usual workload.

Incident 11: Chris Stewart would not answer the work phone or respond to customer service emails and was on his mobile phone all the time – there was a lot of clowning around which increased the pressure on the Plaintiff to “pick up the slack”.

Incident 12: They would leave the small office for unexplained long periods of time resulting in the Plaintiff being alone and remaining the sole worker in the office.

Incident 13: They persistently refused to engage in professional and respectful communications with the Plaintiff within the small office thereby disrupting her capacity to work efficiently by isolating her within the office.

99. I note that the allegations that the Stewart brothers were absent from the office for long periods of time, and of ‘clowning around’ in the office and the impact these alleged behaviours had on Ms Pirrone’s workload, are repetitions of previous allegations. These have been dealt with above in paragraphs 80-81.
100. It was common ground that Ms Pirrone was employed by Bostik as a Warehouse Despatch Officer, that this was an administrative, office-based role and that her ordinary hours were 7.00am to 3.00pm.^[160] Her contract of employment provided that she was required to carry out other duties reasonably required of her that were within her capabilities, including additional hours if necessary.^[161]
101. Ms Pirrone gave evidence that her duties included invoicing and manifesting,^[162] and completing dangerous goods paperwork.^[163] Mr Chapman, who performed Ms Pirrone’s duties when she was absent from work, explained that the role also involved dealing with enquiries from customer service and truck drivers.^[164]
102. The defendant had a system in place in 2017 to 2018 whereby any work that Ms Pirrone could not complete during the dayshift would be completed by Brian Powney during the afternoon shift. Mr Powney gave evidence that he would “take over” Ms Pirrone’s duties in the afternoon and do “basically what Josey did”.^[165] Mr Lee Tet gave evidence that Mr Powney “would effectively finish anything that Josey didn't get through”^[166] and “pick up the slack”.^[167] Mr Powney confirmed that Ms Pirrone left him paperwork to complete during his shift^[168] and that he infrequently left work for Ms Pirrone to complete the following day.^[169]
103. Ms Pirrone alleged that Chris Stewart failed: to assist her when she asked for help; to distribute the workload fairly or to respond to emails or phone calls. She also complained that he was on his mobile phone ‘all the time’; and that the Stewart brothers refused to engage in respectful communications with her.
104. Ms Pirrone said that she was under an increased workload because Chris Stewart refused to help her, telling her he was busy,^[170] which she did not believe. She said that her workload was affected by the absence of the Stewart brothers from the office; that she began to fall behind in her work and was unable to complete it before the afternoon shift came into the office.^[171] She also described at 2 o’clock her co-workers having a “see ya later” approach when going out the door with no communication as to whether she was alright or was there anything she might need assistance with.^[172]
105. Ms Pirrone believed her increased workload pressure was not because Chris Stewart was too busy to assist but, because her co-workers wanted to get rid of her, thinking “they didn’t want me there anymore and they were putting pressure (on me). They knew how I felt because I broke down many times crying, sometimes in public.”^[173] This behaviour caused her to leave work early (from around 2.00pm instead of 3.00pm) saying she was feeling unwell.
106. Ms Pirrone said that when she complained to Mr Lee Tet about the Stewart brothers’ behaviour (their absence from the office, their failure to attend to calls), her evidence was that Mr Lee Tet told her to “step back a bit” and “hold them more accountable”.^[174] In her evidence, Ms Pirrone said:

“.. I said to him, ‘If I do that your warehouse will fall apart.’ I said, ‘I can't do that, it's not in my nature’. If someone is not attending to something and someone calls me and says, 'Josey, could you please look in that?' I would never say to that person, 'Oh, that's not my job’ ... I wouldn't do it. I would take on that inquiry until I finished it ...”.^[175]

107. Ms Pirrone also stated that Mr Lee Tet told her “You hold their hand”, to which she responded “I didn't hold their hand, I ran a warehouse”.^[176]
108. Mr Lee Tet’s evidence was that Ms Pirrone did not complain to him about the Stewart brothers being absent from the office, but did complain to him about the behaviour of forklift drivers, who would come in and ask her to look up the location of stock on her computer when they could check it themselves on the computer located in the warehouse.^[177] He understood that Ms Pirrone would help the forklift drivers with their inquiries if she had time, but told her that if she did not, she should ask them to do it themselves.^[178]
109. There was differing evidence about the workload associated with Ms Pirrone’s role generally and whether, when the Stewart brothers were in the office, her workload caused her to fall behind. She described her job as being “on the go from the minute I started work to when I finished”.^[179] Mr Chapman described the workload as “busy, but doable”.^[180] Other witnesses gave evidence that Ms Pirrone would have ‘spare time’ during her work day, during which she would have coffee, chat, smoke cigarettes and shop online.^[181] Shaun Stewart described observing “small periods” when Ms Pirrone’s work appeared to build up “but within 20 minutes it was gone”.^[182]
110. Mr Lee Tet described much of Ms Pirrone’s work – including invoicing, manifesting, dealing with truck drivers and dealing with warehouse staff – as ‘routine’ and ‘day to day’ tasks that did not require specific allocation.^[183] There were some matters (like urgent orders) which could be escalated and Ms Pirrone may have been asked to perform certain tasks; however, this would occur on an ‘as required’ basis rather than an everyday occurrence.^[184] Chris Stewart gave evidence that he did not have any part in allocating invoicing or emails to her. He did, however, indicate that he would attempt to arrange for assistance for Ms Pirrone if she asked for help and that, if he could not provide assistance, the work could be left for Mr Powney to complete on the afternoon shift.^[185]
111. On the evidence, I consider that references to Chris Stewart regularly ‘allocating’ work to Ms Pirrone are without substance.
112. As noted above, the Stewart brothers’ roles were distinct from Ms Pirrone’s and their duties often took them out of the office and on to the warehouse floor.
113. Mr Lee Tet gave evidence that he expected workers in the office to assist one other, if and when they had the capacity to do so.^[186]
114. In keeping with Chris Stewart’s comments that he would help Ms Pirrone when he could or attempt to arrange help, Ms Pirrone acknowledged in cross examination that “we just communicate amongst each other, ‘Oh, can you help me with this, can you help me with that’, or ‘I'm falling behind’, and so on”.^[187] Matthew Stewart agreed that he would ‘help out’, if asked.^[188] Shaun Stewart denied that Chris failed to distribute the workload in a fair and even manner,^[189] that Ms Pirrone had to ‘pick up the slack’ because Chris wouldn't reply to the phone or emails^[190] or that he and his brothers would leave the office for long periods of time, leaving Ms Pirrone to handle the work.^[191]
115. In response to the allegation that Chris Stewart would talk on his mobile phone in the office, Chris explained that his mobile phone was a work phone and the calls related to his managerial duties.^[192] I accept his evidence in this regard.
116. I prefer the evidence of the defendant’s witnesses to that of Ms Pirrone in relation to each of these alleged incidents, and I am not satisfied that they are made out.

b) Attempted transfer of Ms Pirrone to new work position

Incident 14: The Plaintiff returned to work after suffering from diverticulitis but still felt stressed and remained unwell. The defendant attempted to transfer the plaintiff away from her Warehouse Despatch Officer duties by seeking to change her work to an unspecified “new work position” in circumstances as follows:

(1) Plaintiff meets with Mr Lee Tet who says there is a role in production for which she is “the perfect person for it” and which will be less stressful but did not provide any details concerning the new work position including:

• any appropriate communication regarding the restructure of the Plaintiff’s role;
• any management support or adequate training and induction concerning the new work position;
• a position description or title;

(2) Plaintiff told Mr Lee Tet she was very confused and wanted to know why all the information concerning the new role was not provided to her and what was to happen to her current work position;

(3) Plaintiff inquired of Mr Lee Tet whether her current role was still there if she didn't choose to accept the new role advising him "I've been unwell and stressed from work";

(4) Plaintiff and Mr Lee Tet discuss stress issues and that he has put things in place for the warehouse to pick up the slack, as they rely on her too much saying "the new role would get me out of the office";

(5) Because of uncertainty regarding this new role, the plaintiff returns to her current role as Warehouse Despatch Officer confused and under stress.

117. Ms Pirrone alleges, in substance, that the defendant attempted to transfer her from her Warehouse Despatch Role to an unspecified new role and failed to provide her with any appropriate communication regarding the role, any management support or training regarding the new position or a position description or title.
118. Ms Pirrone was absent on sick leave for much of April 2018,^[193] during which period she was hospitalised at Austin Health with a diagnosis of diverticulitis for which she was certified as unfit for normal duties from 16 April until 27 April 2018. During this period, Mr Chapman had been performing Ms Pirrone’s job.
119. According to Ms Pirrone, when she returned to work Monday, 30 April 2018, she was still not feeling 100% well. She said that Mr Lee Tet told her there was a position available for which they were going to advertise but suggested “you would be perfect for the role” and “at the moment Chris Chapman, another warehouse guy, will do your job.”^[194] As Ms Pirrone understood it, the new job role did not have a job title, job description or remuneration details but had been approved by Human Resources. She understood that Mr Lee Tet would remain her boss. Mr Lee Tet suggested that she sit with Max Elliot in Production to learn at least some aspects of the new role from him.
120. Ms Pirrone sent an email of 2 May 2018.^[195] to Mr Lee Tet requesting to “have a bit of a chat soon regarding this new role” noting that whilst she was happy to sit in with Mr Elliot and learn she wanted “to know exactly what the role will detail etc before deciding to move forward”.^[196]
121. On around 2 May and/or 3 May 2018 Ms Pirrone sat with Mr Elliott in Production. She said in her evidence that “he had no intentions whatsoever to train me.”^[197] She was surprised and upset to receive “congratulations on your promotion”^[198] from an IT worker based in the Essendon Fields office of the defendant. Her reaction was to say to the worker “What are you talking about, my job’s gone?”^[199]
122. She said that she was crying about the perceived loss of her role which she said Mr Chapman saw and asked her “Are you ok?” to which she replied “No, not really.”^[200]
123. Ms Pirrone’s last day of work was on 3 May 2018. She obtained a medical certificate from her treating doctor certifying her unfit to continue her usual work on that day.^[201]
124. On 6 May 2018 she obtained a further medical certificate that she was unfit to continue her usual work from 7 May to 20 May 2018 (inclusive), noting she “is experiencing work related stress”.^[202] Later on 6 May, Nick texted Mr Lee Tet on Ms Pirrone’s behalf that:

josey not well to come to work for next few weeks shes off with work stress leave it was just too much for her after coming out of hospital and coming into work not knowing what her new role in Bostik was she’s just a mess...she’s been to the doctors and they advised to take some time off.^[203]

125. On 11 May 2018 she attended her doctor, who noted:^[204]

Very emotional, frustrated and angry

Work has not been too supportive about how she feels

Feels let down

Nil ideas of suicide or DSH

126. Ms Pirrone said that she then wrote an email to Jackie Allen on 15 May 2018 (sent at 9.37 am)^[205] in which she stated that on her return to work Mr Lee Tet told her that a new role was created for her and that another employee had been doing her job while she was away; but that he was unable to provide her with a job description, job title or remuneration for the new role. She stated that the situation was “very confusing and extremely stressful” and, requested “HR to explain to her the reasons why (she) was not allowed to return to (her) existing job role after taking a couple of weeks off from work on sick leave”.^[206]
127. Ms Allen responded to her about an hour later by email, noting, among other things:

...To provide you with the clarity you are seeking in your below email, your role at Bostik in the Warehouse is unchanged and there is no change to your employment terms and conditions.^[207]

128. Ms Allen offered to discuss this matter with Ms Pirrone and arrangements were made for a meeting to be held on 17 May 2018. Ms Pirrone attended the meeting in the company of a support worker, Jami Moran, to discuss her concerns regarding her position with the defendant.
129. Ms Pirrone gave evidence concerning “everything” she told Ms Allen at that meeting which included:

the behaviour of the guys in the office. ... [T]he emails and always on their phones and the larrikin behaviour, the flatulence that was nearly on a daily basis, it was there, the pressure I was having from them not pulling their weight around, talking to Andrew and getting no resolution, things weren’t getting better, they were getting worse. I told her how I felt from the morning when I got to go to work to how when I finished that I didn’t want to be there anymore. I told her about the new job description. I told her about apparently HR, ... knew about the role and had approve(d) it and told her everything she was feeling that moment and how I felt now about going to work and common home from work, I told her everything”.^[208]

130. Ms Allen typed notes of the meeting, as follows:^[209]

Josey

Having time out and have it for you and make sure ou have it for you

I've always had a good cionversation with Ansrew

When did he want me to start 6-2

I was looking for clarity and that when it all started

He sent chris setewart from the warehouse to discuss my situation

Why I was I speaking with chris

I didn't

I got unwell and was in hostpitaL I WAS on medication

Andrew txt my partner to say I wanted to see him

Andrew asked him how she was. He said she was stressed and not herself

Cloudty judgment

The reason im here is that I mifght have a job for josey and I wasn't josey to learn maxes role

Partner said I can speak to josey

i came to work work ion mondy and I said iwasnt well

Ff I don't want want it, so who would be doing my role, he said chris chapman would be taking it

This tipped me over the edge

I didn't know if I had l;ost my role

I emailed ansdrew that this is stressing me out, I just want to be suere that my role is still there and I got nothing back from andrew

I sat with max and he really DIDN'T TELL ME ANYTHING

People were congratulation me on my new role. Adam from EF said you a at least got a role.

I felt liketo iwas going to break down and

I think what has Happenined is illegal you cant just take a job off people

The report lines don't make senses

Andrew then saifd that antheana is not moving she wants to learn max's role

Om the Wednesday when I qwent to sit with macx to learn the role rioss jackson walked pass and said hi, the next day when I went to see anwerew for more clarification , and andrew said that ross jackson came to see me to ask what is going on and I said we have it all under control and HR knows All about it.

I was in the lablell room not knowing what i was doing and I was overwhelmed and I didn't know what was going on. I was overwhelmed, I diodnt know what wsa going on

Chappy was ther with me.

Jami was ther and offered a taxi or ambulance because I wasn't right.

My partner had to close his shop to come and get me.

I diont kjnow what is going onb.

I found the whole thing.... Im just really angery

Ive got dsome much going on and to do this and put extract stress on m=e.

He didn't come to me the right way, frankly I don't want to move if im stayiong in this role

I don't believe that this is fair.

I want you to be aware of what has happened and I want you to know about it.

My position was going to be taken by someone else in the warehouse.

I want you to understand what I have heard and that I have been off work because if all this going on.

I want you to know what I know .

I have nothing against andrew he has been supportive about luncinda. Hes given me time off and

I am so angery that he would do that. Max didn't have any intention

Saif pay would be reviewed in2 motnhs role

I asked for detiALS

SPOKE about anthena and mioxs role and learning Athena roles and david mann roles and matt setewarts in claims but will we ytake it step by step

Ther wee r no details

Whati

I want to know why

131. In her evidence, Ms Allen explained that what was proposed was a change to Ms Pirrone’s duties and that Ms Pirrone mis-characterised it as a ‘new job’.^[210] It followed that, as there was no ‘new job’ then being proposed as such, there was no job title, description or difference in renumeration.^[211]
132. It was put to Ms Allen that her typed notes did not record Ms Pirrone having raised concerns around some of the behaviours of the Stewart brothers in the office, including farting.
133. Ms Allen said:

“I think there was a conversation around farting. They were farting, and I understand that Andrew had dealt with that issue, and it had been resolved. Not through Josey, but I understood that that issue had been resolved.”^[212]

134. Ms Allen said that if Ms Pirrone had referred to daily larrikin behaviour, or being put under pressure, or things getting worse, she would have recorded them in her notes.
135. Ms Allen said that Ms Pirrone was very emotional during the meeting,^[213] which lasted about an hour, and that she cried a lot. Ms Allen said that Ms Pirrone talked about the mental health challenges of her daughter, which had in turn affected Ms Pirrone, as well as events in the family. Ms Pirrone said that she was seeing a counsellor. Ms Allen said that she repeatedly reassured Ms Pirrone that her role in the office was still there for her, but that Ms Pirrone did not want to acknowledge this. Ms Allen explained that what Bostik was trying to do was to have a discussion with her about the possibility of a change of role for her. However, Ms Pirrone did not want to listen to the possibility of discussing a change of role. Ms Allen said that it was standard practice to have another worker perform Ms Pirrone’s role while she was on sick leave. This did not mean that her job was not available to her when she returned.
136. The evidence of Mr Lee Tet was that he was aware of issues that Ms Pirrone was having at home with Lucinda, that these issues put stress on Ms Pirrone when she was at work and affected her attendance at work. However, these issues did not affect her performance at work.^[214]
137. He said that an opportunity for a change to Ms Pirrone’s position arose in 2018 because Mr Elliot, who was a planner, was due to retire. Mr Elliot’s work “can be done in sort of any period of time. It’s not time specific”.^[215] Mr Lee Tet thought of Ms Pirrone for the role because it was more flexible and the hours would start earlier so Ms Pirrone could be home earlier,^[216] which would help her care for her daughter. He “floated”^[217] the idea with Ms Pirrone following her discharge from hospital (which related to her diverticulitis). He gave evidence that she was “open” to the idea.^[218]
138. He said that the specifics of the change to Ms Pirrone’s role had not been set when he raised it with Ms Pirrone. Bearing in mind how “well-organised” Ms Pirrone was, Mr Lee Tet considered that “there could have been a couple of other things that we could have added to the role...”.^[219] He described the offer as “genuine”: “... we had to replace Max, so it wasn't a made up role, it wasn't a – an attempt to do anything other than find the best for everybody”.^[220]
139. Contrary to Ms Pirrone’s assertion that Mr Chapman had “taken”^[221] her role, Mr Lee Tet confirmed that Mr Chapman had performed her duties while she was on sick leave^[222] and that at no stage was Ms Pirrone’s role in the office withdrawn from her.^[223] Mr Lee Tet confirmed that if Ms Pirrone took the new role but did not like the new duties, she had the option of returning to her role in the warehouse office.^[224] Ms Allen gave evidence to the same effect.^[225]
140. When Ms Pirrone expressed confusion about the new proposal to Mr Lee Tet in her email dated 2 May 2018,^[226] he spoke to her again^[227] and indicated that while he intended to provide her with a description of the duties, it would take time.^[228]
141. Mr Elliot denied the allegation that he ‘had no intention of training’ Ms Pirrone when she shadowed him in late April and early May 2018. He said that he tried to show her the sorts of things he did in his role on the computer, and that Ms Pirrone expressed her unhappiness about being trained by him.^[229]
142. Ms Allen reassured Ms Pirrone, by email^[230] and at the meeting held on 17 May 2018,^[231] that her role was still there but said that Ms Pirrone apparently would not believe her. Ms Allen said that during the meeting she had a lot of trouble moving Ms Pirrone away from the idea that she had lost her role.^[232]
143. I consider that for a number of reasons, the alleged “fourteenth incident” is not made out. By her contract of employment, Ms Pirrone agreed to perform ‘other duties’ that she was ‘skilled and capable of performing’. Here, Ms Pirrone was not directed to perform other duties (although Bostik would have been entitled to direct her to do so). She was asked if she would like to trial other duties with potential benefits to herself and to her employer. She had the option of declining the duties if she did not like them. She had the option of resuming her existing role, which was never taken away from her. This was repeatedly communicated to her by Mr Lee Tet and Ms Allen. The communications were verbal and in writing.
144. I prefer the evidence of the defendant’s witnesses in relation to this allegation to the evidence of Ms Pirrone. I am not satisfied that the allegation is made out.

CONCLUSION

145. In the light of my findings on the whole of the evidence that Ms Pirrone has not made out her allegations of bullying (incidents 1-14) and “resulting work stress”, it is unnecessary for me to consider the questions of breach, contributory negligence, causation, or damages.
146. Ms Pirrone’s application is dismissed. I reserve the question of costs.

---

^[1] Exhibit A, Plaintiff Courtbook (‘PCB’) 249–257, T341/12-25.
^[2] The office was around 2 or 3 metres wide by 5 or 6 metres long.
^[3] Transcript of Proceedings (‘T’) 784/17-19.
^[4] T752/2-3; T784/15-16.
^[5] T145/10.
^[6] T145/8-10.
^[7] T145/8-10.
^[8] T145/10.
^[9] See the diagnosis of Dr Weissman in July 2021, Exhibit G, PCB 84.
^[10] Dr Mendelson in September 2021 and June 2023 diagnosed recurrent depressive disorder.
^[11] Amended Statement of Claim (‘ASoC’), dated 11 October 2023, 5 [5].
^[12] Ibid 7 [6].
^[13] In either 2017 or 2018, Bostik granted Ms Pirrone permission for Lucinda to come to work with her for two weeks (T894/10-12). Lucinda was going through a stressful time in early April 2018 due to a Victims of Crime claim in relation to multiple assaults and a rape (T427/3-5). Lucinda’s depot injection was brought forward as a result of her increased stress (T449/18). See also the text messages from Ms Pirrone to Mr Lee Tet sent 22 March 2018 (Exhibit 4, DCB 159). Lucinda moved to supported independent living accommodation in early 2018 after living at home with Ms Pirrone (T95/4-9; T95/11). See also the highlighted entries in the chronology included in the Defendant’s Written Submissions.
^[14] T296/18-24:
“I took a week of leave because - week of sick leave because I had a lot of stomach pain and nausea and hot flushes. I – I wasn't well at all” (This relates to between 9 and 18 April 2018).
T415/8-10:
“I just used to get hot flushes and then I'd be like - mood swings, just angry at home and then okay”.
See also T451 where Ms Pirrone agreed she was experiencing the hot flushes and stomach pains while texting Andrew Lee Tet in April 2018. There were also the highlighted entries in the chronology which is included in the Defendant’s Written Submissions.
^[15] T406 /20-24.
^[16] A. Prof. Mendelson diagnosed a recurrent depressive disorder in Exhibit 12, Defendant Court Book (‘DCB’) 56. Ms Ntobedzi and Dr Hayman both spoke of the increased incidence of depression in those who had previously experienced depression: T644/12-18, T647/5-11; T713/11-15.
^[17] Exhibit A, PCB 249–257.
^[18] [2021] VSCA 327, [52]-[53]
^[19] Plaintiff’s Closing Submissions, 12 December 2023, 6 [17].
^[20] See paragraph 3 of the Defendant’s Defence to the Amended Statement of Claim, dated 11 October 2023.
^[21] Defendant’s Written Submissions, 12 December 2023, 7 [11].
^[22] Clinical records of Friendly Medical Centre in Exhibit 2, DCB 355 entry 5/1/06.
^[23] Ms Pirrone was cross examined (see T371 to T397) about complaints of depression and anxiety and prescriptions of antidepressant and antianxiety medication contained in the clinical records of her general practitioners at the Friendly Medical Centre (Exhibit 2, DCB 347-379) and Alpha Medical Centre (Exhibit 3, DCB 380-465). Following this, she repeatedly gave evidence that she did not have any previous psychiatric problems (T493/10-13; T493/20-31; T494/1-3; T499/23-27; T500/2-13; T503/5-14; T504/30-31; T505/1-3).
^[24] Defendant’s Written Submissions, above n 21, 10 [12].
^[25] Ibid.
^[26] Stevens v DP World Melbourne (2022) VSCA 285, [44] (Beach and Macaulay JJA and J Forrest AJA).
^[27] Ibid.
^[28] Clinical records of Friendly Medical Centre, Exhibit 2, DCB 355, entry 5/1/06.
^[29] Ibid. See also the entries 10/1/06 at DCB 355 and 12/9/09 at DCB 359.
^[30] See report of Dr Mendelson 29 September 2021, Exhibit 12, DCB 30-62.
^[31] DCB 362, entry on 27/1/11; T492/6-11.
^[32] DCB 362, entry on 27/1/11; T492/12-27.
^[33] Exhibit 7, Ambulance attendance record dated 29 August 2013, Addendum to DCB 4-7; T388-9; T492/19-20.
^[34] Exhibit 2, Clinical records of Friendly Medical Centre, DCB 369, entries 16/9/13 and 15/10/13.
^[35] Ibid, entries 1/12/15 and 7/12/15 at DCB 372-3.
^[36] Exhibit 3, DCB 451-2.
^[37] T493/24-T494/1-3.
^[38] T359/28-T360/7; T493/20-31; T494/1-3; T499/23-27; T500/12-13; T503/5-14; T504/30-31; T505/1-4.
^[39] T259/10-13:
“Did that [the farting] cause you on occasion to have to leave the office? Definitely, all the time. I walked out on every time that it – they farted. If I was on the phone, I would sometimes hang up and say I'd call them back, and I would leave my office.”
^[40] See paragraph 71 below.
^[41] Exhibit G, Report of Dr David Weissman dated 19 July 2021, PCB 81.
^[42] Exhibit Y, Report of Dr Brendan Hayman dated 24 April 2023, PCB 122.
^[43] See, for example:
T275/22-28: “...I'd always go and see him [Andrew] and tell him what was going on, that nothing had changed, if anything it got worse. I told him that I was going home crying, I told him I didn't want to be at work anymore. I told him that they were rude”.
T460/23-25: “...I broke down many times for work. On that Monday for that new role, I broke down because of that new role”.
^[44] See Andrew Lee Tet at T775/19-25:
“...she would get phone calls from either her mother, so Lucy's grandmother or friends. If there was an issue, Josey would be upset. How did she show the upset? What made you aware that she was upset?---She was crying. She was crying. She'd come in, she'd explain to me what's happening, ask if she could leave and - yeah, I let her go.”
^[45] Jackie Allen T 917/4-16:
“she was talking about going out for dinner with her family one night at a restaurant and she and her husband had arrived at the restaurant and she couldn't get out of the car. She ended up going home because she just couldn't get out of the car to go in and socialise with her family that night. ... It was in the context of the difficulty she was experiencing in her life in general and her view at (sic) that – well, part of it was in and around her daughter because that had been very difficult, a very difficult set of circumstances for her.”
^[46] See, for example:
T273/3-10: ”I didn't feel very well at all. I used to - I used to even leave work and - you know, I'd pull over and I'd cry, and I'd vomit, and I would go home and I'd just be very upset and angry, and didn't even really want to think of going to work the next day. And sometimes, I used to drive to work and - you know, I'd do a U-turn and go home because it wasn't a happy place for me anymore”
T299/1-8:
“... towards the end, like February, March, I - I would get up and I hadn't slept well, and just, you know, just things rushing through my head and I'd drive to work and I'd get just around the corner and - and then I'd just find myself pulling over and - I don't know, just all this anxiety, it wasn't even food because I wasn't really eating, and I would just vomit all this phlegm. And then I'd just do a U-turn and - and I'd drive myself back home”
T299/18-26:
“it just felt like the minute I left home the closer I got to work the more these feelings just kept choking me, and I - and I kept taking deep breaths thinking what's going on, just go in, you know, just go into work, maybe - you know, things may change. But as soon as I got to, like, closer and closer I - I just couldn't do it, I just used to feel the vomiting coming up and then I used to pull over and - quite embarrassing actually, but I - yeah, I used to vomit”.
^[47] Ibid.
^[48]See, for example:
T468/27-28: “And on your evidence nothing got better and your health got worse?---Yes”;
T531/20-22: when giving evidence about what she told Jacki Allen at the meeting on 17 May 2018, she referred to “ ...me talking to Andrew and getting no resolution, things weren't getting better, they were getting worse.”
^[49] T418/9-18; Addendum to DCB, 10.
^[50] See, for example, T122/1; T122/15; T362/24-25; T463/24-26.
^[51] See, for example, her email to Andrew Lee Tet on 2 May 2018 (Exhibit K, PCB 366, DCB 223) where she wrote: “I love working in my current role and moving forward you know I would always be available in helping warehouse with further duties”.
^[52] Mr Lee Tet was responsible for making Ms Pirrone a permanent employee (T769/19) and worked with her in the warehouse office until 2017 (T769/12-14, 28).
^[53] T769/4.
^[54] He would go to the warehouse office at least 6 times a day (T773/29-30) for a minute to an hour (T784/2-4).
^[55] T775/2-10.
^[56] T949/3-14.
^[57] T864/10-11.
^[58] T864/21-23: “She had her role, I had mine”.
^[59] T865/7.
^[60] T866/12-22; T867/9-13; T873/10-12; T878/14-17.
^[61] T949/3-14:
“I mean we had quite long conversations about her daughter having some mental issues. There – there would be – there was a time where her daughter actually I think came to our warehouse – like she doesn't have a licence, but she drove to the warehouse. And then obviously that distressed Josey quite a bit. But again, I felt as though – like I was totally understanding, you know. There'd been times where she'd have to take her back home, or she'd have to leave early for personal reasons for Lucy. Yeah, so – and we allowed her to do so.”
^[62] See, for example, T951/16-17; 18-20; 24-26.
^[63] T895/22-24.
^[64] T895/30-31.
^[65] T853/6-15.
^[66] See Exhibit 6, Addendum to DCB, 8-10.
^[67] T916/24–T917/1:
“Josey spent a lot of the time talking about her personal circumstances, the therapy that she was kind of in. Not in a lot of detail but just expressing she was seeing a counsellor. ... She was talking about the mental health challenges of her daughter and how that had manifested and, you know, created some concerns for her and her own mental health”.
^[68]Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.
^[69] As set out in the Plaintiff’s Revised Schedule of Incidents, dated 11 October 2023.
^[70] T258/8-12.
^[71] T260/21.
^[72]See T260/1-3:
“Unfortunately I can't say to you out of the one – out of – out of who it was, because I always had my back to them” and T260/7-8: “But in the office, I can't actually – you know, sort of say, yes, it was Matt, or yes, it was Shaun”.
^[73] T551/27-29.
^[74] T559/30-31; T560/1-7.
^[75] T510/14-17.
^[76] T260/24-25.
^[77] The Plaintiff’s flatulence related evidence in chief appears at T258–261.
^[78] T966/24, 26.
^[79] T275/20-25
^[80] T275/20-31.
^[81] A copy page from Mr Lee Tet’s diary containing a brief handwritten note of the toolbox meeting including “RESPECT FOR WORK MATES” was tendered by the Defendant, Exhibit 9, DCB 226.
^[82] T834/16-24.
^[83] T936/24-29.
^[84] Plaintiff’s Closing Submissions, above n 19, 8, [25].
^[85] Ibid.
^[86] See, for example, Mr Jovanovski at T562/24; Mr Chapman at T732/6 and T732/10-15; Mr Powney at T753/5- 6.
^[87] T733/26-27, T236/12-15.
^[88] T752/11-13, T758/9-11.
^[89] T784/6.
^[90] T895/9, 11, T895/25-31, T902/8-12.
^[91] T950/13-20.
^[92] T966/28-29; T967/1-2.
^[93] T879/6-10.[,]
^[95] T967/13-18.
^[96] T967/13-18.
^[97] T890/6.
^[98] T966/23-26.
^[99] T259/1-5:
“...they would sometimes even blame me and say that I was the one that farted. Especially if there was a driver at the window, or someone from the warehouse would come in and say, "Oh geez, what's that smell?" "Oh, Josey did it" ”.
^[100] T880/9-12.
^[101] T880/13.
^[102] T866/23-24; T967/7-8.
^[103] T866/25-26; T967/9-10.
^[104] T788/9-10; T789/2-6.
^[105] See:
T258/21-23: “So I, on occasions, had to always leave my work station. But they would laugh, they just thought it was just funny”;
T259/9-13: “Did that cause you on occasion to have to leave the office? ---Definitely, all the time. I walked out on every time that it – they farted. If I was on the phone, I would sometimes hang up and say I'd call them back, and I would leave my office”;
T260/31; T261/1: “And then sometimes I got to the point where I had to leave for 15 minutes...”
^[106] T259/21-28:“And unfortunately there was times that I would be having my lunch, and they would – they would walk out and literally fart as they were walking out the door, and laugh. And I used to think that – I used to actually get up and follow them and say to them, "That's disgusting, and I – I'm definitely going to see Andrew about it", which I – I did”.
^[107] T955/17-19.
^[108] T955/22-23.
^[109] T955/24-28.
^[110] T969/12-21.
^[111] T788/9-14.
^[112] T565-13-15.
^[113] T950/29-31.
^[114] T881/4-7, T967/16-28.
^[115] T265/1-2. See also T264/14; T514/24-25.
^[116] T264/19.
^[117] T353/23-24.
^[118] T353/25-26: “... they used to just say things like that all the time.”
^[119] T265/6-10.

^[120] T354/11-12:
“I just used to think it was really silly. I just used to feel like that – that just wasn't necessary to even say that”.
^[121] T354/30-31: “I think that's just so stupid", I used to say to them.”

T355/16-17: “You know, sometimes I would laugh it off and go, "Yeah, whatever", you know.”
^[122] T281/24.
^[123] T287/2-6.
^[124] T287/24.
^[125] T265/21-24.
^[126] T266/1-2.
^[127] T884/26.
^[128] T969/25-28.
^[129] T956/11-15:
“Things said like - for instance if a truck driver or a customer was - had been in the office, things said like he liked you and thought you were pretty? You hadn't heard of anything of that kind?---Yes, I've heard things like that, but that's from Josey. And what about from one or other of the workers in the office? ---Not from memory, no”.
^[130] See, for example:
Chris Chapman at T733/28-31: “-There was laughter, like there was a bit of joking around kind of thing, which I thought was good. It kept morale up, kind of thing”.
Brian Powney at T763/7-10:“Sometimes I'd go in and they'd be laughing and, you know, might crack a joke or something. I've missed a joke but they'll all be laughing.
Andrew Lee Tet at T840/18-19: “Any joking or bantering Josey was more than involved in.”
Chris Stewart at T945/14-18: “Josey was quite loud. She - yeah, you'd always know when she entered the room. She always made an entrance. She was sort of the life of the party, you could say, and - yeah, she would sort of dictate the mood of the office at times as well”.
Chris Stewart at T956/26-29: “There was always general conversations. I would say there was banter, but I couldn't tell you an example of that, because that's the type of relationship that myself, Shaun had with Josey.”
Matt Stewart, T865/1-6: “Everybody got along, got along well... Just everyone was always happy, chatting.”
^[131] T782/19-20.
^[132] T788/29; T789/1.
^[133] T784/6.
^[134] T840/18-19.
^[135] T841/6-9; 849/7-15.
^[136] T841/9.
^[137] T957/3
^[138] T957/5-7.
^[139] T265/25-26.
^[140] Andrew Lee Tet at T787/10-11.
^[141] See:
Matthew Stewart at T864/9-11: “How much of your time did you spend in the office in that period that I've explained?---I was constantly – I'd say 50/50. It was up and down a lot.”
Chris Stewart at T944/17-19: “As best you can estimate, how much of your time was spent in the office and how much was spent on the floor or in other locations not in the office?---I would say 50-50.”
Shaun Stewart at T963/17-18: “So, I put that probably 60/40. 60 percent being in the office, 40 percent being out.”
^[142] Chris Chapman at T947/26-31; T948/1:
“Again depending on the time of the month, I personally might be in a meeting in some type of Zoom catch up, Shaun and Matt would be obviously – being the construction supervisor/the schooling – Matt was in charge of "Back to School". So they would be out on the floor helping with those orders being picked.”
^[143] T267/9-10
^[144] T267/11-12.
^[145] T268/2-3.
^[146] T269/31.
^[147] T957/22-28.
^[148] T267/12-14.
^[149] T516/30-31; T517/1-7.
^[150] T269/28-31.
^[151] T517/8.
^[152] T518/1-2.
^[153] T518/15-17.
^[154] T970/6; 8.
^[155] T970/14; 17.
^[156] T957/17-18.
^[157] T957/11-28.
^[158] T884; 30-31; T885/1-3.
^[159] T885/5-7.
^[160] T136/8-11.
^[161] DCB 139-146.
^[162] T256/10-12.
^[163] T447/19-22.
^[164] See Chris Chapman, T730/2-8:
“Do you know what Josey's role was when she was at Bostik?---I think she was admin role in the warehouse office. And do you know what that role entailed?---It was invoicing, manifesting, computer work as in working with customer service. Truck drivers would come into the office and she would direct them where they needed to go. That's about it I think”.
See also Andrew Lee Tet at T770/31; T771/1-5:
“So all the work was picked from outside would come in, all paperwork would come in to Josey, Josey would then confirm that on the system. She would manifest all of that work to the relevant transport company. They would pick up the freight that night or the following morning”.
^[165] T748/22-29.
^[166] T771/9-10.
^[167] T771/18.
^[168] T751/4-5.
^[169] See T750/26-31; T751/1-3.
“I'm talking about the period in 2017 to the middle of 2018 – would you leave work for Josey to do when she started her shift?---Not normally. I'd only leave Josey work if I had a problem. We had a computer dropout or something, but no – usually no, Josey didn't get anything. You said not normally, how often would it happen?---I'll take a stab in the dark and probably say maybe once every two or three weeks I might leave her something that I couldn't sort out on night shift.”
^[170] T273/16-17.
^[171] T272/3-9.
^[172] T272/15-19.
^[173] T273/17-23.
^[174] T275/1-2.
^[175] T275/2-12.
^[176] T275/17-19.
^[177] T787/15-23.
^[178] T787/19-23
^[179] T270/4-6.
^[180] T731/21.
^[181] See, for example:
Ms Pirrone at T259/19-20: “My boss never questioned me if I went out twice for a cigarette or five times, because he knew I did my work...”
Matt Stewart at T889/6-8: “Every morning that was, for an hour, hour and a half. She used to have coffee, have a chat”; at T885/25: “...she was on the phone a lot herself”.
Shaun Stewart at T968/17-21:“Were there times when she appeared to have got through all her work and had spare time?--- Absolutely. And what did you observe her to do when she'd completed her work and apparently had spare time?--- Just on the phone, 20 on the computer shopping, gone for a smoke”.
^[182] T968/13-16.
^[183] T772/25-31; T773/7-10.
^[184] Andrew Lee Tet at T773/11-17:
“What sorts of matters would arise from time to time that did require allocation?---Anything that got escalated. So, if an urgent order came through Josey may be asked to release this order, can you follow it through, can you make sure it gets allocated and dispatched today, now. That type of – but that could also be sent to whoever was there at the time. So, as required”.
^[185] T947/7-11:
“... if she was ever sort of under type of pressure, or – or needed any type of help, she always felt comfortable coming to me and asking for that. And if we could, we would help; and if we couldn't, then we would leave for Brian Powney to do in the afternoon”.
^[186] T785/12-15.
^[187] T519/10-15.
^[188] T876/10-12.
^[189] T970/23-25.
^[190] T970/26-29.
^[191] T971/1-2.
^[192] T958/30; T959/4.
^[193] Exhibit M, PCB 155, 156 and 157.
^[194] See generally T/304/15-30.
^[195] Exhibit K, PCB 366.
^[196] DCB 223.
^[197] T314/9-16.
^[198] T315/14.
^[199] T315/17-18.
^[200] T315/17-25.
^[201] Exhibit M, PCB 158.
^[202] Exhibit M, PCB 159.
^[203] Exhibit 5, DCB 170-1.
^[204] Exhibit 3, DCB 451.
^[205] Exhibit L, PCB 343.
^[206] T318/4-7
^[207] Exhibit L, PCB 342.
^[208] T531/15-29.
^[209] Exhibit 11, DCB 224-225.
^[210] T929/9-15.
^[211] T929/10-12.
^[212] T931/20-24.
^[213] T915/9-12
^[214] T833/28-29.
^[215] T790/21-25.
^[216] T790/14-19.
^[217] T790/25.
^[218] T790/19.
^[219] T790/30-31; T791/1.
^[220] T793/2-4.
^[221] T489/13.
^[222] T779/13-15.
^[223] T734/21-23, T741/28-29, T779/19; T779/21-22.
^[224] T791/11-13; T793/7.

^[225] T924/16-28; T898/14-16.
^[226] Exhibit K, PCB 366.
^[227] T791/31; T792/1-7:
“What was your response when you saw the email?---I suppose I was a little bit taken back because I thought we had gone through the role in a fair bit of detail, but I had no issues with talking to her about it again.
And did you talk about it again?---Yep, spoke to her about it again, pretty much reiterated the same thing. I did say that we would put a job description together but, you know, it'll take time”.
^[228] T792/5-7.
^[229] T855/6-18:
“Well, she wasn't very happy about the situation, and I'm not too sure what her workload was like in the warehouse, but I think she felt that coming to work and spend the morning with me was – was interrupting her warehouse work. And I think it was – you know, putting more stress on to her.
Did she say anything to that effect?---Yes, she was always telling everybody within earshot she wasn't happy about it. Do you recall more specifically what she said?---Not really, only that, you know, she didn't know how she was going to handle like two jobs, and things like to that – that effect, I would say”.
^[230] Exhibit L, Email chain between Plaintiff and Ms Jacki Allen, PCB 340-344. See, in particular, email from Ms Allen to Ms Pirrone sent 15 May 2018 at 10.49am in which Ms Allen states:
“To provide you with the clarity you are seeking in your below email, your role at Bostik in the Warehouse is unchanged and there is no change to your employment terms and conditions”.
^[231] T924/16-18:
“I did have a conversation with her about the fact that, you know, her role in the warehouse was unchanged”.
^[232] T924/16-31; T925/1:
“I did have a conversation with her about the fact that, you know, her role in the warehouse was unchanged. It was very difficult to convince her of this. It was like a fact she didn't want to acknowledge or believed she wanted to keep on the narrative that her job had been changed and she didn't have a job and this wasn't right to which I'd been speaking to her about saying, "Look, we need to work this through. I don't know where this confusion has come from but you do have a role, we're talking to you about this change in role but it's not a given, it's a discussion. We don't just move people like that," but it appears to her the concept of talking to her about anything in regards to her role was difficult for her and she just didn't want to, you know, listen to anything that said, you know, "We're just having a conversation with you". ”