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IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE

Case No. B11706453 PATRICIA CASTELLUCCI Plaintiff v SISTERS OF ST JOSEPH HEALTH CARE SERVICES (VIC.) Defendant

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MAGISTRATE: Magistrate B.R. Wright

WHERE HELD: Melbourne

DATE OF HEARING:

DATE OF DECISION: 24 February 2012

CASE MAY BE CITED AS: Castellucci v. Sisters Of St Joseph

REASONS FOR DECISION

--- Catchwords: Workers Compensation - Rejection of Claim - Alleged Mental Stress from Employment – Injury - Incapacity for Work - Questions of Fact - Accident Compensation Act s.82, 93

--- APPEARANCES:

Counsel Solicitors

For the Plaintiff Mr C Miles Maurice Blackburn For the Defendant Mr B McKenzie Hall & Wilcox

JAG 1 DECISION

HIS HONOUR:

1 Mrs Castellucci is a 57 year old woman employed by the defendant as a food

services assistant from about 1991. She worked on a part time basis for about

33 hours per fortnight mainly on Saturdays, Mondays and Tuesdays on either

morning or afternoon shifts.

2 The defendant manages the Mary MacKillop Centre (“the Centre”), which is

an aged care centre looking after a number of residents, mainly elderly, infirm

and retired nuns.

3 In the statement of claim Mrs Castellucci alleges she suffered "anxiety and

depression" as a result of the general nature and physical and mental

stresses and strains” of her employment. She seeks weekly payments and

reasonable medical and like expenses from 6 June 2010 pursuant to the

Accident Compensation Act (“the Act”).

4 In her rejected claim form of 29 August 2010 she described, "What happened

and how were you injured?" as, "Verbally, physically, sexual harassment, and

unprofessional behaviour of sexual comments and performances".

5 When she gave evidence, she complained of a number of episodes of

“touching” by a chef, Mark Taylor. In addition, she complained of various

dealings with him over the latter period of her employment, especially related

to the introduction of a new system of delivering food to the residents at the

defendant's premises. To a lesser extent, she also complained about Kerry

Bradley, the chief executive officer at the time in relation to her support of the

new chef.

6 The defendant denied any "touching by the chef" and alleged she was

antagonistic towards the chef. It denies any work related injury or incapacity.

7 In his final address counsel for the plaintiff said that the case was put on the

basis that there was "unpermitted touching" of Mrs Castellucci by

JAG 2 DECISION

Mr Taylor, which was not of an overt sexual nature. He emphasised the

inter-personal conflicts between Mrs Castellucci and Mr Taylor, especially

over events in the introduction of the new food service system.

8 Understandably and appropriately, there was no s.82(2A) defence pleaded in

this matter.

9 The plaintiff, two former workmates Ms. Hariclia Dissanayeke ("Carol") and

Frances Demate ("Frances"), her GP and psychologist gave evidence. The

defendant called a further workmate, Jessica Zhou ("Jessica"), as well as the

present chef/food services manager, Mr Taylor.

10 Mrs Castellucci is a divorced mother with a single child and has a previous

history of an acute psychiatric episode in about 1997 when she became

concerned about her mortgage and also had problems with her then teenage

daughter. She was off work for 12 weeks at that time, had psychiatric

treatment and was put on to Zoloft at 50 milligrams per day (though higher on

occasions). She has remained on Zoloft until the present day.

11 She also has a history of Meniere’s disease, which is a disease of the inner

ear resulting in hearing loss and loss of balance. In fact, she is and was at all

material times in receipt of a partial disability support pension for the

Meniere's disease over at least a significant period with the defendant. She

clearly is concerned about her Meniere's disease. She says she must avoid

stress and be in comfortable surroundings. She says she gets dizzy at times,

can become nauseous in public and often vomits in public. She says people

sometimes think she may be "on drugs".

12 She says that she enjoyed working at the defendant's premises prior to

Mr Taylor's employment and said the previous seven years were "the happiest

time of my life". She had good relationships with the previous chef and her

fellow workers. She said the work was challenging despite working with high

care residents, being largely retired nuns.

JAG 3 DECISION

13 The new chief executive officer, Ms Bradley, started in about August 2007.

She began making minor changes in other areas. About September 2009, she

appointed a new chef/food services manager, Mr Taylor. One of the reasons

for his employment was to introduce a new food service system for residents.

14 The old system was to cook the food early, serve it on plates, which would be

left in hot boxes for a time and later delivered, to patients. The new system

aimed for more nutritious, warmer and palatable food being given. This would

be done by cooking food later and placing it in to a bain-marie. The food

services assistant would then dish the food on to plates just prior to delivery to

the resident. Difficulties involved patients with dietary needs and preferences,

particularly where they were unable to communicate adequately with staff.

15 Mrs Castellucci mainly worked upstairs dealing with the high care patients. It

was decided that the new system would be phased in the downstairs dining

room first. The residents dining there were more mobile and able to

communicate as to problems and preferences. Thus, Mrs Castellucci had little

to do at the start with the new system.

16 She gave evidence of a number of unpleasant dealings with Mr Taylor after he

commenced. I will not go into detail about those allegations but summarise

them.

17 In the first incident, some time after she started she was in the kitchen when

he came from his office and stood up close. She said he ran his hand across

her face and neck. She was shocked and jumped back. He said, "We'll be OK

you and me, just stick with me". She said his eyes "fluttered" at me. She was

shocked and confused.

18 She said the second incident occurred about a week later when he came to

her in the kitchen with the menu. He said something to her and ran his right

arm from her left shoulder across her upper chest to her right shoulder. Again

she jumped back and said she was shocked. She thought he was "sick or

JAG 4 DECISION

there was something wrong". She tried to avoid him after that.

19 The third incident occurred about a further week later when she was dishing

up dessert from a bench area. He came to the kitchen and stood close to her

right side. She said he reached over and lifted his right knee, which touched

her groin area. Again she was shocked. She jumped back and said to him

"We are touchy feely, aren't we?"

20 She made no complaint to anyone in authority or discussed the incidents with

anyone at that time. She said that she was trying to stay away from him as

much as possible. She preferred working morning shift so she would have

another food services assistant in the kitchen with her. She said that after that

he would "pop up from anywhere" near her. After a while, he left her alone and

"focused on someone else".

21 She said that she "lost respect" for him after that. He would ask her about

gossip on other staff. She said she refused to go into such issues with him. He

told her "people do not like working with you".

22 She said the fourth incident occurred when there was a leaking fridge/freezer

in the kitchen. This was some time after the third incident. Mrs Castellucci was

in the kitchen. She said Mr Taylor caught her attention and made as if he was

urinating on the floor above a puddle of water from the freezer. Mrs

Castellucci said she thought that disgusting and said to him, "Now I know why

the unisex toilets are not clean".

23 There was an alleged fifth incident. She said that another food services

assistant "Bassie" came in and said to her, "I think something's wrong with

Mark". She said Bassie told her of an incident when Mr Taylor held a

cucumber in front of his groin. She said " ‘We’ did not know who to trust or go

to”.

24 The sixth incident occurred later when there were a group of food services

JAG 5 DECISION

assistants having morning tea in the kitchen area. Mr Taylor came over and

said that "Carol", a relief cook, had made an allegation that he had sexually

harassed her by touching her face. He told them the incident was not true and

that she was, "a fat cow" and would not "touch her with a 10 foot pole".

Mrs Castellucci did not understand why he was taking the incident so lightly

and told him maybe that he should "lay low for a while".

25 She dreaded working afternoon shifts as she would have to be in the kitchen

alone with him. There would be two food services assistants working in the

morning. She liked Saturdays as Mr Taylor would not work weekends.

26 As the new food services system began to be introduced upstairs, problems

arose. At times her evidence was difficult to follow in this regard. The narrative

spread far and wide. Overall, there was a persistent complaint that Mr Taylor

was making things difficult for her and "trying" to make her look incompetent. I

do not wish to be considered trivialising her complaints as these were clearly

of some concern to Mrs Castellucci.

27 She complained of missing portions and food not being prepared. One day

there was pear juice missing upstairs. When she enquired about it, she was

asked whether she knew how to use a can opener. She complained of Mr

Taylor pushing a trolley with her abruptly and not giving her time to have new

training on a computer.

28 All the time she said Mr Taylor spoke abruptly to her, called her incompetent

and told her she "needed retraining". He would point a finger in her face when

telling her what to do.

29 At the same time, new food service assistants were being recruited, being in

their mid 20s. The previous food service assistants were much older. Mrs

Castellucci said that Mr Taylor favoured them, called them his "dream team"

and his "babies" and appeared to flirt with them. In particular, she referred to

his behaviour with Jessica a new Chinese food services assistant who was

JAG 6 DECISION

about 25 years old.

30 She said that she was feeling anxious about going to work, was having

nightmares and insomnia and was “edgy”. At times, she was not coping and

struggling at work. She was scratching at her face as a nervous habit. Matters

came to a head in early June 2010.

31 The seventh incident occurred on about Tuesday 1 June 2010 at about

9.30 a.m. She was upstairs in a kitchenette with Jessica. She said Mr Taylor

came in and she asked him why he was there. He advanced towards her and

gave her a full tight body hug from the front and walked her backwards. He

said to Jessica to "not get jealous". She said that he and Jessica were

laughing together. He relaxed her grip and she was able to get away. She

said she felt ill.

32 Later that day he "got stuck into her" over a missing cutlery bucket. The hot

box was missing and the two of them went to get it downstairs. She said he

yelled at her, called her incompetent and said she needed retraining. He

belittled her in front of a resident who complemented him on a slice that he

had prepared.

33 She became upset and mistakenly bumped in to a resident, later thinking she

had hurt her with the hot box. She worried about not reporting that as an

incident to the chief executive officer.

34 As she was leaving that night she said goodbye to Mark. Mark told her to

"Come here" and told her Jessica had done well in bringing down some bowls.

Mrs Castellucci disagreed. Mr Taylor put his hand over her mouth a couple of

times and said she was a liar, telling her to shut up, that she was incompetent

and needed retraining. She said she stuck up for herself and said that he was

giving her extra work.

35 He put his hand over her mouth again and told her to "Get out" standing up

JAG 7 DECISION

over her. She tried to leave and he told her to "Get back here". Out of

frustration and obviously upset she told him to "Get fucked".

36 She did not know whether she should go home and decided to "report herself"

to the chief executive officer. She was concerned that "anybody who had

reported incidents had not returned", that is she feared being dismissed.

37 She went to Ms Bradley's office in a distressed state, told her that Mr Taylor

had told her she was incompetent, and needed retraining. She told her there

were some unfinished tables that needed wiping. She was shocked to be told

by Ms Bradley that was not her job. Mrs Castellucci thought that Mr Taylor

had not been properly supervising her.

38 She was then told by Ms Bradley that " ‘We’ might be on his back", referring to

Mr Taylor. She thought that Ms Bradley was sticking up for him and she told

her that she would apologise to Mr Taylor. Ms Bradley agreed this was a good

idea. All the time Mrs Castellucci was upset and crying.

39 On the next day the Wednesday 2 June, she was to work an afternoon shift.

She was very wary about going to work. At work in the kitchen Mr Taylor

came to her and said, "I knew that was going to happen (that is the swearing)

which is why I was telling you to go home". He said, "She was not getting it

and needed retraining from Marie". Mrs Castellucci felt humiliated by this

comment, as Marie was a relatively new member of staff initially trained by

Mrs Castellucci.

40 She was very upset. Marie helped to calm her down and she was able to

finish the shift. She later told Marie everything. She told her everything

Mr Taylor had done to her and the others. Marie told her to tell Ms Bradley.

Mrs Castellucci repeated to her that anybody who had complained had lost

their job. She went home and "collapsed". She saw her GP about these

matters first on Friday 4 June and asked whether it was OK to be touched on

the face. Her GP said it was not all right.

JAG 8 DECISION

41 Mrs Castellucci said she was confused and humiliated and felt at rock bottom.

She went to work on the next day a Saturday, as she knew Mr Taylor would

not be there. She was very anxious at work and tried not to let the residents

see her being upset. She was confused at the end of the day as to how 20

years of employment had ended so badly. She felt sick and did not work on

the Monday. She returned to her general practitioner and has not worked

since.

42 She repeated that she did not complain about Mr Taylor's conduct to any

supervisor until the end as Ms Bradley "was not approachable" and other

complainants had not returned after making complaints. She said that she

was confused about Mr Taylor's conduct towards her.

43 She was on sick pay until 16 October 2010 and annual leave to 24 January

2011. She no longer receives any pay from the defendant, but is apparently

still formally employed there. There has been no contact between her and the

defendant since, as to any job offer, rehabilitation or otherwise.

44 She put in her claim form on 29 August 2010. She may have submitted an

invalid claim form a short time earlier. Nothing really matters about this delay.

She was referred to a psychologist, Dr Sood, in early July 2010 and a

psychiatrist, Dr Manuel. The prescription of Zoloft, an antidepressant and anti

anxiety drug was increased. She was later put on to Cymbalta at 120

milligrams as well. Cymbalta is an antidepressant.

45 Her GP later told me in evidence that prescribing Zoloft prior to the later work

episodes was meant to help her with her Meniere's disease.

46 She has gone from seeing Dr Sood once per fortnight to every three weeks,

but has had difficulty paying for recent attendances as her Medicare

entitlement has ceased. She sees Dr Manuel now every four to six weeks

after seeing her initially about every three weeks.

JAG 9 DECISION

47 She appears reluctant to admit to any improvement since ceasing work. She

said she lacks confidence, is easily anxious and is very tired because of the

Cymbalta. She gets out of bed at about 10.30 a.m. or so. She says she is

unemployable and is tearful at times. She "does things generally in pairs",

such as shopping.

48 Despite those statements, she admits to undertaking many regular social and

household activities with yoga on Mondays and spending considerable time in

her garden, up to a full day at a time. She cooks for herself and occasionally

goes out for a cheap meal. She has lunch with friends at times, sees her

family on Saturdays and attends Sunday mass at different churches every

week. She was certainly not withdrawn or isolated, having her daughter's

friends stay with her at times.

49 She admits at times she did contemplate returning to work, but does not

believe she should have to work elsewhere. She says she needs a calm place

to work because of her Meniere's disease. She says the Meniere’s disease is

worse with stress. The defendant was understanding in this regard before.

She needs a friendly workplace so she can lie down or sit if her Meniere’s

disease symptoms increase. She says she cannot drive for long because of

her Meniere's disease. She is clearly angry about Mr Taylor and would not be

able to work with him on any view of the evidence.

50 Mrs Castellucci called two former staff to give evidence. Frances Demate was

a food service assistant at the Centre and was a similar age to Mrs

Castellucci. She gave evidence of two episodes of unpermitted touching by Mr

Taylor, once on the hand and later on 3 June 2010 when he put his arm

around her. She denied he did this to comfort her because she was upset.

She told him not to touch her and was upset by his action. When she

complained to Ms Bradley, she was given short shrift and told "I like hugs, you

don't, it will be noted". When she saw Mr Taylor after this, he told her she did

not have to go to Ms Bradley and it was enough to tell him.

JAG 10 DECISION

51 She also gave similar evidence of the sixth incident in the kitchen when

Mr Taylor approached the morning tea group and told them he was accused

of sexual harassment by Carol. She was disgusted by his comment that he

would not touch Carol “with a 10 foot pole”. She did not witness any incidents

involving Mrs Castellucci and gave no evidence of any discussion with

Mrs Castellucci about any incidents.

52 She also gave evidence about the usual morning tea arrangements. She said

she worked two weekdays per week and that Mr Taylor would "always" sit

right up next to Jessica at the morning tea table and would "almost have his

head on his shoulder". She obviously believed that this was inappropriate

conduct by them both.

53 Carol, a former relief chef, also gave evidence. She was also highly critical of

Mr Taylor's conduct at work, saying that he swore a lot in the kitchen and was

"in her face a lot". She also complained of two incidents when he touched her

on the face, once with both hands and the other time under the chin.

54 When she told him not to use the “F…” word regularly in the kitchen she said

that he told her "That is the way we Englishmen speak". She was critical of Ms

Bradley saying that she put a notice around saying that she would not tolerate

“complaining and whinging” and that people “knew where the door is”.

55 She had a meeting with Ms Bradley on 3 October 2010 and complained to her

about the two touching episodes and the alleged cucumber incident involving

"Bassie". She told her Mr Taylor licked his fingers, did not wash his hands and

swore a lot in the kitchen. She said Ms Bradley told her that "she did not

believe it". Nothing further was done about any complaint by Carol. She was

upset and rang Fair Work Australia. Shortly after that she entered into an

agreement with the defendant and left its employ.

56 Significantly, neither party called Bassie (who is still apparently employed by

the defendant) to give evidence as to whether the alleged cucumber incident

JAG 11 DECISION

had taken place and whether she had in fact told anybody of such an

allegation.

57 With the consent of counsel for the plaintiff, I was told that Ms. Bradley was no

longer employed by the defendant and her whereabouts were unknown.

58 Neither did either party call “Maria" whose name was mentioned in evidence

by both Mrs Castellucci and Mr Taylor as well.

59 The defendant did call Jessica and Mr Taylor to give evidence. Certainly, the

differences between his evidence and that of the three lay witnesses on the

plaintiff’s side were a matter of black and white. Mr Taylor denied almost all of

the allegations made against him. However, he did make some admissions

which I will detail in due course.

60 First, Jessica gave evidence. She required the use of a Cantonese interpreter.

However, she appeared to understand the questions put to her in English. I

note that she has used the English language in working for the defendant for

the last two years. Indeed, even Mr Taylor said he was surprised when she

required an interpreter as he had no trouble communicating in English with

her at work and said that she had a good memory at work.

61 I was not impressed with her evidence. To most of the questions about the

reported allegations, she said that she did not remember or recall such

incidents. This was only after relatively long periods of apparent deep thinking

about the question with a painfully strained look on her face.

62 She said she could not remember some things in her family life but had not

consulted any doctor about these "memory lapses" as it did not concern her.

About the only allegation she specifically denied was sitting next to Mr Taylor

at morning tea as this was "inappropriate".

63 I draw no inference, positive or negative about other evidence given by other

witnesses on the basis of Ms Zhou's evidence or rather her "lack of evidence".

JAG 12 DECISION

She was a most unsatisfactory witness.

64 The food services manager/chief Mr Taylor then gave evidence. He admitted

one “touching” incident involving Frances. Otherwise, he denied any improper

or other touching of Mrs Castellucci, Frances or Carol or swearing as alleged.

He denied any sexual or other harassment.

65 He started full time at the defendant's in October 2009. He said he had been

brought in to change over the food delivery system from the old hot box

system to a new healthy and palatable bain-marie serving system. He agreed

that it was introduced in stages with the upstairs area, involving dementia

patients, being changed over last. His evidence conflicted in some degree

with Mrs Castellucci as to the degree of introduction of the new system

upstairs by the time she ceased work. He said it was much more advanced

than that stated by Mrs Castellucci at that time.

66 From the start, he said that there was resistance towards the changes from a

group of what he referred to as the "Troublesome Ten". This group included

long-term food services assistants such as Mrs Castellucci, Frances and the

relief chef Carol. He said they gradually left and younger more “adaptable”

staff, such as Marie and Jessica, were employed.

67 He said the older food service assistants were very cliquey. They took long

breaks in the residents' area and had what he described as "Teddy bears

picnics" complete with cakes and pastries for morning tea. They would either

use the residents' dining room or go out and have morning tea in the sun. He

said that in the past the defendant had a tolerant attitude in keeping a lot of

the older food services assistants employed. He had been told by Ms Bradley

that the defendant “couldn’t control or do anything about some of them".

68 In particular, he said that Mrs Castellucci would not and could not do what

was required in the new system. He had tried to retrain her by getting Marie to

help. He said he simply "could not get through to her". He said he knew that

JAG 13 DECISION

she was going to "blow up" just prior to the swearing incident and told her to

go home and calm down.

69 He denied pointing at her in the face or putting his hand against her mouth.

He said that she struggled with the changes and was set in her ways. He

agreed that there was some friction towards him by Mrs Castellucci. He

denied favouring Jessica or sitting close to her at morning tea regularly or at

least more than occasionally. He agreed that some people referred to the

younger staff as “Mark’s babies”.

70 He was able to get in a few allegations about Mrs Castellucci as well. He said

that she would make more sexual comments than him, though he denied

making any sexual comments at all. He said one day she said to him that

"Some of the residents need a good root and you are the man to do it". He

said he did not call her to task at the time but should have done so.

71 I do not accept those allegations as truthful. I note Mrs Castellucci had

actually “reported herself” to the CEO a few minutes after swearing at Mr

Taylor when frustrated and angry. Overall, I found her to be a prim and proper

and at times naïve person. Mr Taylor agreed that Mrs Castellucci wanted to

work only morning shifts as stated by her, but did not know why she wanted

this.

72 What was more telling about Mr Taylor's evidence was some of the

admissions he made. He denied any improper touching of Mrs Castellucci and

the other two lay witnesses. He said that he brushed up against

Mrs Castellucci once with an oven tray by mistake and apologised. He also

admitted putting his hand around Frances to comfort her as he said that she

was upset. As noted, Frances denied being upset before being touched by

him.

73 He admitted that allegations were made to Ms Bradley that he had sexually

harassed Carol and Frances. Although he denied making the "not touch Carol

JAG 14 DECISION

with a 10 foot pole" comment to the food services staff, he said that he had

actually made a similar comment to Ms Bradley. Although he denied touching

or hugging any of the "Troublesome Ten" as he put it, he said he did hug

Jessica and she hugged him. He said that he has hugged other staff as well.

He said he knew of the cucumber allegation supposedly involving “Bassie”,

but said that this was a lie by Carol.

74 Interestingly, he gave evidence about the notice that Carol alleged that

Ms Bradley had posted criticising "complaining and whingeing" complaints by

staff.

75 Mr Taylor identified the notice that was tendered in court. He gave evidence

that it was decided that as a number of the older food services staff would not

be able to adjust to change, it was decided that anyone who had been there

for five years and found the “move difficult” could apply for an agreed

termination of employment package. The tendered notice/letter dated 8

January 2010 referred to this aspect.

76 It also drew attention to "rude and offensive" behaviour between food service

staff and between personal care staff and other personnel. It said formal

disciplinary measures would be instituted if such behaviour continued.

77 Further to this, Mrs Castellucci and Mr Taylor both accused each other of

inappropriate gossip by the other about staff. It is impossible to be satisfied

one way or the other. Of course, one person's gossip is another person's

discussion about staff work issues. I do not propose to go into that issue any

further.

78 Before making formal findings, I will summarise the medical evidence. Dr Jill

Rosenblatt, a GP, and Dr Reshma Sood, psychologist gave viva voce

evidence. Reports were tendered from a Dr Manuel, psychiatrist.

79 Dr Rosenblatt gave evidence of a diagnosis of adjustment disorder,

JAG 15 DECISION

depressed mood and anxiety. She said there was a direct connection with her

alleged workplace harassment. Despite both reports from her (the latter being

dated 21 October 2011) stating that Mrs Castellucci had recovered sufficiently

to return to work, but not in the presence of the stressor, Mr Taylor, she gave

different viva voce evidence. She said Mrs Castellucci was not fit to work now

although she had not considered or talked about work at a different place with

her.

80 In referring to the Meniere’s disease, she said that the only limitation on work

would be that she should not be exposed to loud noises. Thus, she did not

support Mrs Castellucci's view that the Meniere’s disease required her to work

without stress, in comfortable surroundings and in a relatively close proximity.

She gave evidence that Mrs Castellucci had a conscious or subconscious

need to seek validation as to the alleged mistreatment. She said that this was

playing a part in her present symptomology. In addition, Mrs Castellucci’s

concern about the present legal proceedings played a part in the present

symptomology as well.

81 Dr Sood, a psychologist, gave a similar diagnosis to Dr Rosenblatt. She says

in her report that Mrs Castellucci's responses have suggested that

Mrs Castellucci's interactions with Mr Taylor had been a major contributing

factor to the development of anxiety and depression syndromes and mental

deterioration. In her viva voce evidence she agreed that as at 16 September

2010 Mrs Castellucci had "wanted to seek justice" as to how she and other

work mates had been treated. She though that it was possible that

Mrs Castellucci could return to work at another workplace but needed a

gradual and supportive return to work in a comfortable working environment.

Again, she stated that the legal process had not helped overall in resolution of

continuing symptomology. However, Mrs Castellucci was much better in

October 2011 and has improved overall since first seeing her in July 2010.

82 Two medical reports were tendered from Dr Manuel, the treating psychiatrist,

JAG 16 DECISION

both bearing the date of 28 October 2011. Both reports were almost identical

except for comment about "current and future work capacity". Both reports say

that she could return to work in mid December (one report referring to 2010)

providing she curtailed interaction with the chef. However, one of the reports

(bearing the date from ACCS dated 17 January 2012) states that she is

anxious and stressed about returning to work at the defendant's workplace. In

that report, Dr Manuel also states "She will not be able to return to work due to

ongoing anxiety and frustration over unresolved WorkCover issues".

83 The two reports are at times obviously ambiguous, in some conflict (though

bearing the same date) and do not specifically address a number of significant

issues, especially as to fitness for work at another workplace at the present

time or indeed since 28 October 2011.

84 The defendant tendered four reports from Dr Entwisle, psychiatrist, who

examined Mrs Castellucci twice, being on 23 September 2010 and 3

November 2011. He agreed with the medical diagnosis of adjustment disorder

with anxious and depressed mood. He stated that Mrs Castellucci perceives

herself as the victim of negative managerial practices, harassment and abuse.

He thought that she was a vulnerable woman prone to volatility when under

pressure or stress. On the first occasion he thought that she was too unstable

to return to her workplace. On the second occasion he thought that the

adjustment disorder was in remission and she was fit for pre-injury duties and

hours at the very least for another employer.

85 It is clear that there was mutual antagonism and ill feeling towards the other

by Mrs Castellucci, Carol and Frances on the one side and Mr Taylor on the

other. Each side tried to denigrate the other's behaviour. By saying that, I am

not finding that each side was equally to blame. My role in these proceedings

is not to blame or find fault.

86 It is clear to me that there were personality conflicts between at least

JAG 17 DECISION

Mrs Castellucci and Mr Taylor, especially over the introduction of their new

food service system. Mr Taylor stated that the "Troublesome Ten" were

against changing the system whereas Mrs Castellucci stated there was

inadequate and improper training in the new system.

87 As I stated, counsel for the plaintiff specifically submitted that the improper

touching was not of a sexual nature. That concession was appropriate on the

evidence before me. I am unable to find any specific touching episode as

alleged by Mrs Castellucci. As stated, there were no witnesses or

contemporaneous reporting. It is a matter of word against word. The histories

to the doctors and the viva voce evidence before me were affected by the

considerable ill feeling by Mrs Castellucci towards Mr Taylor.

88 I have some concerns about the evidence of the other work mate Carol. Her

evidence as to the notice criticising "complaining and whinging" and referring

to the “door” contrasted with the actual notice tendered in court. Again, there

was obvious ill feeling by her towards Mr Taylor. As for Frances, there was

only one contested relatively minor incident alleged, as to which I am unable

to make any finding and do not propose to do so.

89 However, I do not accept Mr Taylor's blanket denial of any unpermitted

touching of Mrs Castellucci either. He admitted hugging other staff then and

now (apart from the "Troublesome Ten") and trying to comfort the work mate

Frances physically. On any view, any such touching or hugging of any staff is

at best unwise and foolhardy and can lead to misunderstandings, especially in

the circumstances of conflict and difficult interactions with other staff.

90 Despite Mrs Castellucci's assertions, I do not accept that she sustained any

more than a very limited (in the psychiatric sense) injury as a result of any

"unpermitted touching" by Mr Taylor. There was no complaint or discussion

with anybody at the time. Again, I believe her evidence is also coloured by her

obvious ill feeling towards Mr Taylor about other matters.

JAG 18 DECISION

91 I am not satisfied that her evidence is a proper reflection as to how she felt at

the time of any unpermitted touching by Mr Taylor and that there has been at

least some unconscious reconstitution of those events in her evidence.

92 I am satisfied that she has suffered a work related aggravation of a

pre-existing psychiatric vulnerability and sustained an adjustment disorder

with anxiety and depression to which her employment was a significant

contributing factor. This was as a result largely of the personality conflicts and

negative interaction with Mr Taylor, and to a lesser extent Ms Bradley,

especially over the introduction of the new food service system and

associated issues. Mr Taylor and Ms Bradley had a number of concerns about

the older food service assistants, which led to those personality conflicts.

93 Mr Taylor said that he was employed to bring in the new system and was

worried there would be difficulties with the older food services assistants, the

“Troublesome Ten" as he called them of which the plaintiff was one. He was

clearly frustrated, "could not get the message across" and admitted such in

trying to train them in the new system. He also wanted them to give up their

practices such as the "Teddy bears picnics" as he described their morning

teas. He clearly wanted them to adjust or leave.

94 He saw the younger staff as being more adaptable and easier to train. From

the point of view of Mrs Castellucci, there was at least a reasonable

perception of favouritism by Mr Taylor towards those younger staff for the

reasons I have outlined above. Such favouritism was probably real. Ms

Bradley's offer of a retirement package to staff who found the move to a

centralised food services system "difficult" obviously coloured his attitude

towards them. I find that he wanted them to either change or leave. I am

satisfied that he was gruff, overcritical, insensitive and abrupt in his dealings

with the older food services staff, such as Mrs Castellucci, accordingly.

95 Although I have not heard from Ms Bradley, I largely accept the evidence of

JAG 19 DECISION

Mrs Castellucci and her two work mates as to the lack of sympathy and

support by Ms Bradley in dealing with their complaints. Their evidence is

consistent with her recruiting of Mr Taylor and the sentiments expressed in the

notice as to staff finding the changeover difficult.

96 The reference to "rude and offensive" behaviour as set out in the notice is also

consistent with there being workplace discontent amongst at least the food

services staff. I am satisfied that there was more than the perception of a

hostile working environment. The working environment there was actually

difficult and hostile, especially by Mr Taylor in his dealings with the older food

service assistants including Mrs Castellucci.

97 Mr Taylor and Ms Bradley seemed to have taken the attitude that they need

do no more than offer retirement packages to disaffected older staff. However,

as I am satisfied that the plaintiff did suffer a work related injury, I need not

take this aspect any further.

98 I am satisfied that Mrs Castellucci had "no current work capacity" as a result of

her work related injury as at the cessation of her employment on 5 June 2010.

I now need to consider the issue of continuing injury and any consequential

incapacity, including the degree of any incapacity.

99 Counsel for the plaintiff urged me to find a continuing work related "no current

work capacity" on the basis of his submissions on the psychiatric and

psychological material.

100 Counsel for the defendant submitted that any injury and incapacity was

extremely limited and there was no reason why she should not have returned

to similar duties at least very soon after ceasing work with the defendant.

101 In considering these issues and the treating doctor's evidence as to her

present state, there are a number of further issues to consider.

Mrs Castellucci only ever worked part time for 33 hours per fortnight, which is

JAG 20 DECISION

a low threshold. Thus, any incapacity must be considered accordingly.

102 Her pre-existing medical condition of Meniere’s disease is also important. She

had been on Zoloft for a number of years, reportedly for the Meniere's

disease. However, she had a relatively significant psychiatric episode in 1997

leading to about 12 weeks off work and has been on Zoloft since. Although

the Zoloft was prescribed for the Meniere’s disease, it would have had some

psychiatric benefits as well. I find that she has always been psychiatrically

vulnerable both generally and more specifically because of the Meniere’s

disease.

103 There was no allegation that her Meniere's disease had been made worse by

the events at the Centre. I can well understand her desire for a comfortable,

relatively close and friendly workplace to cope with her Meniere's disease.

However, her stated need for such is not borne out by the general

practitioner's evidence who said that she should avoid loud noises in any

employment. That was as far as she was prepared to take the issue of the

Meniere’s disease.

104 I find that Mrs Castellucci’s desire to work in such circumstances is not due to

any work injury, but is reflective of her pre injury state and the desire to avoid

any stress or difficulty. Both doctors refer in the past in their reports to a

capacity to return to work without exposure to the "stressor", i.e. Mr Taylor. Dr

Rosenblatt's opinion before me changed slightly in that she said that she had

not really considered other employment. Dr Manuel in her reports did not

address other employment properly and refers vaguely to anxiety and

frustration over unresolved work issues.

105 Another factor to be considered is the desire for justice for the mistreatment

as referred to at least by Dr Sood. Mrs Castellucci frankly stated that she does

not see why she should look for other employment. She is clearly antagonistic

towards the former workplace, especially Mr Taylor. This has coloured her

JAG 21 DECISION

belief about employment. She clearly does not want to even think about any

other job until this case is finalised.

106 I note that she appeared remarkably calm while Mr Taylor was giving

evidence, especially when he was attacking her credit and motives. Indeed, I

note the history to Dr Sood in her report of not experiencing any relapse

despite having to face "former employers and perpetrators of the harassment"

at a recent “equal opportunity board” conciliation hearing. Dr Sood thought

that this was indicative of a more stable mental state.

107 I am prepared to accept that there is still some significant employment

contribution to her adjustment disorder though that disorder is relatively mild

now. I accept the medical and psychiatric evidence that the legal proceedings

themselves have caused some temporary flare-up in her psychiatric state at

the moment.

108 However, my findings as to any incapacity for work are more consistent with

Dr Entwisle's second report. As at 7 November 2011, I believe she had a

capacity to return to work in similar pre-injury duties for the same hours as

before. Obviously, she should not work with Mr Taylor.

109 As I have ruled in previous cases such as Rogers v. State of Victoria

(delivered 8 March 2010), I respectfully agree with His Honour Judge Bowman

as to what is known as the "Kerridge" principle (see, Kerridge v Monsfelt

[2009] VCC 154) and his interpretation as to the effect of the High Court's

decision in Arnotts v. Yacob 155 CLR 171.

110 I find that since at least 7 November 2011 Mrs Castellucci's ability to work has

been substantially the same as it was before Mr Taylor's recruitment. She has

reverted to her pre-injury state as I have set out above. She may be still angry

towards Mr Taylor, want “justice” and be concerned about these proceedings.

However, despite this I find she has had a capacity to return to her previous

duties and limited hours at another similar workplace since at least 7

JAG 22 DECISION

November 2011.

111 Any continuing effects of her work related injury on any incapacity for work

ceased at least as far back as at least 7 November 2011. There is no

incapacity for work resulting from, or materially contributed by, her minor

continuing injury (see, s 93 of the Act). This is also consistent with Dr

Manuel's report of 20 October 2011.

112 As I stated, I find that any reservations as to Mrs Castellucci's capacity for

work is really reflective of her pre-existing psychiatric state and concerns

about her non-work related Meniere’s disease. Her undoubted need for

vindication and antagonism towards Mr Taylor has clearly clouded her views

as to her own work capacity.

113 She is entitled to reasonable medical and like expenses, amount reserved and

weekly payments at the “no current work capacity” rate from 6 June 2010 to

7 November 2011, amounts reserved.

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