CITATION: Janine Zahner AND Q-COMP
(WC/2011/156) - Decision
<http://www.qirc.qld.gov.au>
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Workers' Compensation and Rehabilitation Act 2003 - s. 550 - procedure for appeal
Janine Zahner AND Q-COMP
(WC/2011/156)
DEPUTY PRESIDENT BLOOMFIELD
3 December 2012
DECISION
Background
[1]
This decision relates to an appeal by Ms Janine Zahner against a decision of the Review Unit, Q-COMP
(Q-COMP), dated 8 April 2011, in which Q-COMP upheld an appeal of David Jones Limited (DJs) against an
earlier decision of WorkCover Queensland (WorkCover), dated 17 November 2010, to accept an Application for
Workers' Compensation lodged by Ms Zahner on 7 October 2010. In doing so, Q-COMP accepted that while
Ms Zahner had suffered a personal injury, which arose out of or in the course of her employment, the injury
arose out of reasonable management action taken in a reasonable way and thus was excluded from the definition
of injury at s. 32(1) of the Workers' Compensation and Rehabilitation Act 2003 (the Act) by the operation of
s. 32(5)(a) of the Act.
[2]
In her Application to WorkCover Ms Zahner described the nature of her injury as "stress" which happened at
1.15 p.m. on 3 October 2010. In a separate document dated 23 October 2010, headed "Psychological and
psychiatric injury - claim information summary for workers" (Exhibit 2), Ms Zahner listed the three factors she
saw as being most significant in contributing to her injury as:
"1. Drugs in the workplace
2. No action from Management
3. Bullying + Intimidation from Omar (a co-worker).".
Relevant Legislation
[3]
The Act relevantly provides:
"32 Meaning of Injury
(1) An injury is personal injury arising out of, or in the course of, employment if the employment is a
significant contributing factor to the injury.
…
(5) Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder
arising out of, or in the course of, any of the following circumstances (a) reasonable management action taken in a reasonable way by the employer in connection with
the worker's employment;
(b) the worker's expectation or perception of reasonable management action being taken against
the worker;
(c) action by the Authority or an insurer in connection with the worker's application for
compensation.".
Onus
[4]
The appeal to the Queensland Industrial Relations Commission (the Commission) is by way of a hearing de
novo. It is Ms Zahner who bears the onus of proof on the balance of probabilities (see Eric Martin Rossmuller
AND Q-COMP1).
[5]
In order to establish that she has an entitlement to workers' compensation for the purposes of the Act Ms Zahner
is required to prove, on the balance of probabilities, that:
(a) she is a worker;
(b) she suffered a psychiatric or psychological injury;
1
Eric Martin Rossmuller v Q-COMP (C/2009/36) - Decision <http://www.qirc.qld.gov.au>.
2
(c) her injury arose out of, or in the course of, her employment;
(d) her employment was a significant contributing factor to her injury;
(e) her psychiatric or psychological injury is not removed from the definition of injury at ss. 32(1) by virtue
of the operation of s. 32(5) of the Act.
The case for Ms Zahner
Lay evidence
[6]
Ms Zahner commenced employment with DJs in the menswear department of its Robina store in June 2009. Her
direct supervisor at the time she commenced was Mr Troy Nunn. Later, in approximately February 2010, Mr
Omar Gashi commenced work in the same department.
[7]
In the course of her oral evidence Ms Zahner said Mr Gashi made it very clear from day one what type of person
he was, what his religion was, what his beliefs were, what his thoughts on women were as well as the fact he had
no desire to help the rest of the staff with their workload. He made it known that he was a Muslim, that he was a
cage fighter, that if women crossed him he had the right to punish them in any way he thought was suitable and
that he associated with the Bandidos bikie gang. If she asked him to help her with a particular job she had been
given or to help her lift a box or something similar he would just tell her to "fuck off". Within the first week of
Mr Gashi's employment she informed Mr Nunn about Mr Gashi's behaviour because she thought Mr Nunn
should know what type of worker he had just employed into his team.
[8]
In May 2010, at the end of a shift which only she and Mr Gashi were working, he bent down under the counter
and pulled a bag out of his wallet which he told her contained "speed". He said he had a new dealer and asked
her if she would like to take some home and try it so she could let him know whether it was any good. She told
Mr Gashi to put the packet back in his wallet because security had cameras everywhere and she did not wish to
be seen anywhere near him. While she was hanging the keys up after locking up for the day she saw Mr Gashi
offering some of the speed to one of the security guards. The next day she told Mr Nunn what she had seen. He
laughed and said "That's good. Now I know where to get it from.". Mr Nunn also asked her to handle the
situation and tell Mr Gashi not to bring drugs into the store anymore. She also told Mr Nunn about the security
guard taking the drugs and he said he would have a quiet word with the guard because he was young and it could
cause him a fair amount of trouble. Mr Nunn also told her not to mention what she had seen to anyone.
[9]
On Sunday 3 October 2010 Ms Zahner was working in the store with Mr Gashi, who was now working for a
company which held a concession in the Robina store (French Connection) having moved to that company about
four weeks previously (after having given DJs two weeks' notice). Ms Zahner said DJs had a very big sale on at
that time and the store was extremely busy because she was the only DJs' employee rostered to work in the
department between 10 a.m. and 12 noon. Mr Gashi was hungover and not in a very pleasant mood. He was
extraordinarily unpleasant to work with. Later in the day, after two additional employees commenced work, she
was on the way to the escalator to meet a friend during her lunch break when Mr Gashi came over to her and said
there was a phone call for her. She thought it might have been her friend but Mr Gashi said it was a customer
who had specifically asked for her. She went back to the telephone and introduced herself and asked the
customer if she could help. However, the customer said she was already being assisted and someone had gone to
find a shirt for her. Ms Zahner asked the customer if she was sure and the customer assured her that she was
already being taken care of. She put the phone back down and went to walk away. Mr Gashi came over to her
and asked did she hang up on the customer and she told him no, she hadn't, and that someone else was already
looking for a shirt for the customer. Mr Gashi said "I told her I would look for the shirt but I don't fucking work
for David Jones so you can do it.". She responded by telling Mr Gashi that she had already left for lunch and
there were other casuals who were more than capable of finding the shirt for the customer. Mr Gashi went back
to the phone, held it up and said "if you don't fucking want to help this customer …" and then he slammed the
phone down. Ms Zahner said that was way too much for her and she told Mr Gashi he had gone too far and she
was going to report him. She was very, very upset.
[10]
After meeting her friend for lunch she was still upset and went to see Mr Atilla Berantai, the Duty Manger and
(joint) second-in-charge of the store. He told her that nobody should have to work under those conditions and
that he would inform Mr Nunn when he came into work the next day. Ms Zahner told Mr Berantai that she had
spoken to Mr Nunn on several occasions previously, that he liked Mr Gashi, and that it would not be of any use
to talk to him. Mr Berantai told her he would get to the bottom of it and then suggested she have a walk and a
cup of coffee and try to calm herself down.
[11]
On the following day, which was her day off, she went into work to speak to Mr Nunn because "it had gone on
too long" and she was at the point where she did not like going to work. She spoke to Mr Nunn and told him
how she was feeling and what was going on with Mr Gashi. Mr Nunn's response to her was "I don't know how
seriously I can take you. You've seemed very uptight lately." as a result of which she responded by saying she
had been uptight because of her working conditions. Mr Nunn then told her that if she wished to take the matter
further she would need to write a letter of complaint.
3
[12]
Ms Zahner also said that Mr Nunn had made it very clear to every person who worked in the menswear
department that if there was a problem in menswear it had to stay in that department and was not to go any
further. Mr Nunn was really quite cranky that she had gone to Mr Berantiai on his (Nunn's) day off. Ms Zahner
said she actually intended to give her letter to the store Manager, Ms Anita Dunn, but she felt obliged to follow
Mr Nunn's direction because she was trying to do the best she could to gain a promotion.
[13]
After writing out a letter of complaint, which she could not print because her printer did not work, she went into
work the next day (Tuesday 5 October 2010) and went to Ms Dunn's office to see if she could speak with her.
Ms Dunn said she was busy but that she would get back to her (Zahner) shortly. Ms Zahner said Mr Nunn saw
her near Ms Dunn's office and grabbed her and took her into his office and sat her down. He told her it would be
very hard to sack Mr Gashi. She told Mr Nunn that having illegal substances in the workplace was cause for
instant dismissal. He responded by saying "well, you didn't tell anyone" as a result of which she said "I told
you.". Mr Nunn then said "You want to keep you mouth shut if you want to further your career here at David
Jones. You're not to say a word … Otherwise, I will make you look like an idiot.".
[14]
Ms Zahner said she told Mr Nunn she wanted to go ahead with her complaint. She felt very intimidated and her
nerves were completely shot at this point after he told her not to mention the drugs. Although she knew "it" (i.e.
the drugs issue) was the only way that someone was going to take her seriously she thought the best thing she
could do was to concentrate on the bullying side of Mr Gashi "which was rather shocking in itself".
[15]
In the course of this meeting Ms Zahner also told Mr Nunn that he should know that Mr Gashi was telling certain
people in the workplace that he had Mr Nunn wrapped around his little finger because he (Gashi) was Mr Nunn's
drug dealer. Mr Nunn's response was to tell her that she should not listen to gossip. He told her not to mention it
and that the three of them should sit down and work out their problems, through mediation.
[16]
After her meeting with Mr Nunn she went back to her floor. Mr Gashi received a phone call a short while later,
looked at her and laughed and then went downstairs. About 30 minutes later he came up and she received her
own phone call in which she was asked to go downstairs to meet Mr Nunn and Ms Megan Harwood (the
homewares department Manager) in an office. They said they had just taken a statement from Mr Gashi and
they wanted to take one from her. During this meeting she did not mention anything about drugs in the
workplace because Mr Nunn had warned her not to open her mouth. In the course of the meeting "they"
suggested the best way to deal with her issues with Mr Gashi was to arrange a mediation which they were going
to try and organise within the next few days.
[17]
Ms Zahner said she felt very intimidated in the meeting. "Both Megan and Troy both told me that they didn't
want this problem to go any further, that they didn't want anybody else to know about it and that it should be
handled quickly and quietly as possible, so therefore we should just sit down and discuss it and solve it. Neither
of them seemed to understand how upset I was or look at what the real problem was and how long it had been
going on for. When I left I felt sick, I had a throbbing headache, I was shattered because I had done my best to
work as hard as I could for Troy - sorry - and it was at that time I realised I had no support from him
whatsoever." (Transcript 2-22).
[18]
After the meeting she went back to work but had to leave work and go home after about 10 minutes. Later that
evening Mr Nunn phoned her and told her that she was overreacting and getting herself too upset. He said he
had spoken to Mr Gashi who had "appeared in a very professional manner" and that he (Nunn) thought things
could be solved quickly.
[19]
On the following day she received a telephone call from Mr Stefan Larsen, Regional HR Manager for DJs, who
spoke to her about her complaint relating to bullying and inappropriate behaviour by Mr Gashi. Ms Zahner said
Mr Larsen told her she had every reason to go on stress leave but that she would need a medical certificate. As
such, she went to her GP, Dr Tiller, the following day (7 October 2010) and explained to him exactly what had
gone on. He provided her with a Workers' Compensation Medical Certificate which certified her to be unfit for
work, as a result of work-related stress, anxiety, insomnia and loss of appetite, between 7 October and 15
October 2010 (inclusive).
[20]
Ms Zahner's oral evidence (above) was complemented by a record of interview with Ms Zahner prepared by Ms
Harwood on 5 October 2010 (Exhibit 18), by a record of interview prepared by Mr Larsen following his
telephone discussion with Ms Zahner on 6 October 2010 (Exhibit 6), a six page Statement prepared by Ms
Zahner dated 24 October 2010 (Exhibit 7) as well as a Witness Statement (Exhibit 8), prepared with the
assistance of her Solicitors, dated 13 March 2011.
[21]
Relevantly, the record of interview prepared by Ms Harwood contains the following points:
(a)
Ms Zahner had been having a serious problem with Omar for around six weeks, especially since he
knew he was moving to French Connection.
4
(b) The "serious problem" was "His attitude in general, he's generally unpleasant and shows no respect.".
(c) In the period on Sunday 3 October 2010 when she was the only staff member working with Mr Gashi he
was hungover and tired and said to her "This is fucked. I don't work for DJs. I shouldn't be doing this.".
(d) In terms of specific examples of the problems she was experiencing with Mr Gashi, Ms Zahner is
recorded as having said "Once we were both meant to be working stock and he was doing nothing, he
usually does when Troy's not here, and I said to him 'Come on are you going to help?' and he said 'Fuck
off, I'm not helping you.' This is normal behaviour for him.".
(e) In response to a question about how she would describe her working relationship with Mr Gashi prior to
the last six weeks Ms Zahner is recorded as having said "I wouldn't say we were friends out of work
really, we got on really well, he used to talk to me about his problems and everything. I try to get on
with everyone I work with and I'm not sure what happened with him really. Sometimes we had a
personal dig at each other but in a joking manner. That's what our department is like. I did say to him
'What's going on with you? You're not French Connection yet, you're still one of us.' Everything he
says has 'F' in it.".
(f) On one occasion she was serving a customer who was around 65 and a fan of the Titans Rugby League
Club. Mr Gashi came up and said "Titans suck" in front of the customer and then said "Gold Coast
people suck. It's the worst place to live.". The Customer was shocked and told him she was shopping at
DJs and did not expect to be treated in such a disgusting manner. Mr Gashi told the customer that he
did not work for DJs, he worked for French Connection, and walked off. Ms Zahner apologised to the
customer. As the customer was leaving Mr Gashi said "Well you can fuck off then" but the customer did
not hear him.
(g) On another occasion another employee, Ms Kylie Webb, had lost a ring and everyone was looking for it
because it was important to her for sentimental reasons. Mr Gashi came to her (Zahner) and said "I
found the fucking bitch's ring.". When she asked him where it was he told her he had thrown it in the
bin because he "wasn't going to give it back to the bitch".
(h) She told Mr Nunn about the stock work issue as well as the incident on Sunday 3 October 2010.
(i) "I just feel sick coming to work. Like this morning Omar walked past me and laughed. I know what he
is capable of outside work. I feel very threatened by him.";
(j) She heard Mr Gashi tell Ms Nicole Wood (another employee) on Sunday 3 October 2010 "If Janine
makes a complaint about me, I'll have something on her that will get her fired instantly.".
(k) In response to a question about what she would like Ms Harwood and Mr Nunn to do with the
information she had provided, Ms Zahner is recorded as having said "Well I just thought we could sort it
out, I didn't know it was serious.".
(l) Finally, Ms Harwood's notes record that she asked Ms Zahner if she would be happy to meet with Mr
Gashi to try to resolve the issue. In response Ms Zahner is recorded as having said "Yes I would be and
see where it goes from there. If it doesn't improve then I would make a formal complaint.".
[22]
Mr Larsen conducted a telephone interview with Ms Zahner on 6 October 2010. Mr Larsen's notes of this
discussion record that Ms Zahner provided the following information to him (Exhibit 6):
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
[23]
Mr Gashi is particular type of person. Every day she worked with him he always said "Fuck off, do it
yourself.". Whenever anyone asked him for help he always said "Fuck off, I'm only getting $17 an
hour.".
She had spoken with Mr Nunn several times since Mr Gashi started but nothing had ever been done.
Mr Nunn was going straight to Mr Gashi and telling him what she had said. Mr Gashi then came to her
and told her he knew what she had said to Mr Nunn and then gave her "bad attitude".
The confrontation with the customer about the Titans occurred about two weeks before.
She told Mr Nunn that Mr Gashi was rude to a customer but he took no notice.
She had "reported roughly to Mr Nunn at least ten times.". In the end she knew there was no point.
Sometimes Mr Nunn had her carrying boxes while Mr Gashi stood behind the counter laughing. Mr
Nunn was always siding with Mr Gashi.
She was aware that Mr Gashi was telling everyone that he was Mr Nunn's drug dealer and that the deals
were being done behind the counter in the store. She told Troy about this on a one-on-one basis.
She had seen Mr Gashi pull out drugs from under the counter which he told her was speed. He had also
attempted to sell drugs to two other staff members. When she told Mr Nunn about being offered speed
he said "That's good to know, now I know who to get it off.". Mr Nunn also told her not to tell people
about it as it may have been a joke i.e. just powder.
She was scared of Mr Gashi. He told Nicole Wood that if she made a complaint he would make sure
she was fired.
The outcome she was seeking was the removal of Mr Gashi from the store. She had seen him be rude to
customers, to other staff and he had drugs behind the counter.
In her six page statement dated 24 October 2010 Ms Zahner provided more detail about some of the incidents
and events referred to above, as follows (repeated points, such as the confrontation with the customer about the
Titans, have not been recorded):
5
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
Mr Gashi's rude behaviour and foul language towards all other staff members and customers was
extremely hard to put up with.
His complete disregard for fellow staff members was obvious from day one when his lunch breaks
would be double the amount of time he was meant to have, which would make the rest of the staff late
for their breaks.
His ten minute tea breaks would take 30 minutes.
She spoke to Mr Nunn on several occasions about Mr Gashi but was consistently told Mr Gashi had
been hired to work there for a reason and to leave it at that.
The day after Mr Gashi offered her a free sample of speed she reported the incident to Mr Nunn who
told her to handle the situation and also added, possibly as a joke, that at least he now knew who to get
it off.
Not long after this incident (late May 2010) Mr Gashi and Mr Nunn became quite friendly.
The workload was not spread around fairly and she remembered walking out of the reserve area with a
heavy box of stock one day in August, after being directed to by Mr Nunn, only to find Mr Gashi and
Mr Nunn behind the counter laughing and talking. It became obvious to all staff that Mr Gashi was
being favoured and it became very irritating when it was just she and Mr Gashi on the shift together.
She continued to talk to Mr Nunn about how she felt but he would always reply that she just needed to
see the good in people. However, he would then go straight to Mr Gashi and tell him about her
complaint(s) after which Mr Gashi's attitude towards her would worsen and he would repeat to her what
she had just spoken to Mr Nunn about.
The last two weeks Mr Gashi worked with DJs before he commenced employment with French
Connection "were 100% unbearable". She would go home in tears due to the way he had spoken to her
and left her with all of the workload. Every time she asked him to help he would tell her to "Fuck off. I
don't have to do that.".
After Mr Gashi went to work for French Connection his attitude worsened. His rudeness and
intimidating ways reached new levels.
On 4 October 2010 she spoke to Mr Nunn about Mr Gashi (see her account of this discussion at [11]
above). Mr Nunn told her the proper way to deal with the matter was to put her complaint in writing.
"Omar later threatened that if I put in a complaint against him, he would get something on me that
would have me fired instantly. My immediate thought was that he would plant drugs on me. I went
home and wrote my letter of complaint.".
"The next morning at work, Troy called me down to his office and asked me if I still wanted to go ahead
with my complaint. He told me that I was NOT to go to Anita Dunn, our store manager, under any
circumstances. This was the woman I actually had wanted to hand my letter of complaint into. He told
me that I was only to hand the letter into him, and definitely no one else. He told me it would be very
hard to have Omar sacked, and I told him that I was under the impression that having illegal drugs was
cause for instant dismissal. Troy told me not to mention the drugs to anyone, that I would look stupid
because I had not reported it to anyone, even though I had actually reported it to him, my Manager. I
told him what Omar had been telling a lot of the staff at David Jones, that Omar had Troy wrapt (sic)
around his little finger because he was now Troy's drug dealer. He told me that was rubbish. He again
told me that if I wanted to further my career at David Jones, it would depend on how I handled this
situation. He strongly suggested that Omar, I and Troy should sit down and discuss the situation. I felt
unsupported, and quite upset with the way he wanted to handle things.".
"After going back to my counter, Omar received a phone call and disappeared for roughly 30 min.
When he returned to the counter, he walked past me and laughed at me. I was then called down to
Troy's office, where I found him with Megan another Manager of homewares. I was informed that
Omar had just been in there, and they had taken his statement and now they wanted one from me.
Again I had both managers telling me it would be better if this matter went no further, that mediation
would be the best way. I did not mention the drugs in my statement, as I felt quite intimidated with Troy
sitting right beside me. But I did mention many things that Omar had done and said, including to
customers, and also how he had thrown out a ring one of the other staff members had lost, because he
didn't like her. I really felt that neither one were on my side, that they didn't want to deal with this
situation, and told me they would organize a mediation in the next couple of days. I left, with a severe
headache, and by the time I had reached my counter, I was in tears, my head was throbbing, and I
needed to get out of there. Troy told me to go and get some fresh air, and told me that I was making too
much of the situation and had worked myself up too much. I walked out to the car park and vomited. I
told another staff member that I had to leave.".
"Troy rang me later that afternoon, and again told me he thought I was over reacting to the situation,
that he had spoken to Omar, and that he had a very professional attitude and things could be sorted out
easily if I agreed to sit and talk to him.".
"The following morning I received a phone call from Stefan, from Human resources for David Jones,
who told me the statements from both Omar and me had been sent to him. Stefan told me that he was
taking my statement seriously and asked if there was anymore information I needed to tell him. It was
then that I told him about the drugs, and what Omar had been telling staff about him being Troy's drug
dealer. I explained to Stefan how unwell I was feeling and stressed I was, and he told me I was entitled
to stress leave. I told him I had a Drs Appointment the following morning, and he asked me to bring in
6
my certificate to the Robina store after my appointment, as he would be down to investigate the
situation. Stefan told me I had his complete support, and that he would see me in the morning when I
handed my certificate in.".
[24]
The balance of Ms Zahner's statement relates to events after she lodged her medical certificate and have no
relevance to her claim for Workers' Compensation. However, the statement includes a number of other matters
which impacted on her circumstances and psychological or psychiatric condition. These have been considered
and discussed by several psychiatrists who gave evidence (below). The main aspects canvassed in the remainder
of Ms Zahner's statement are as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
On 7 October 2010 she went into DJs' Robina store to give Mr Larsen her medical certificate. She went
into the office he said he would be in but he was not there. She waited for approximately five minutes
but was so scared of Mr Gashi or Mr Nunn walking past and asking her to go into another office she
ended up putting her papers on Mr Larsen's desk and leaving the store. She was shaking with stress
because she knew that both of them (Nunn and Gashi) would be very angry now that the whole story
had been told.
On Friday 8 October 2010 she received a call from Nicole Pioch from DJs in Brisbane regarding her
medical certificate. Ms Pioch informed her that she was under the impression that Mr Gashi had been
removed from the store and queried when she (Zahner) would be ready to come back to work. She
asked Ms Pioch what was happening with Mr Nunn. Ms Pioch told her she would ask Mr Larsen to
ring her back as soon as possible but she did not hear from him.
A few of her fellow staff members contacted her to let her know that Mr Gashi had been seen in the
store "wearing a singlet which revealed all of his tattoos (and) he had two big built guys on either side
of him, and he walked around the store looking angry and glared at those friends who I was friends
with. I took this as just another act of intimidation, by Omar.".
During this week she had been suffering from nightmares, migraines and anxiety. Saturday 9 October
was her daughter's 14th birthday but instead of enjoying that day she spent the majority of the day in bed
asleep because she was under stress and under medication. Her daughter was very disappointed in her.
On Sunday 10 October she started receiving phone calls from a private number but when she answered
her phone the person hung up. This took place all day and was making her more nervous.
That evening her partner (Mr Scott Byrnes), who also worked at DJs, received a call from a private
number and a male voice stated "You already have one foot in the grave" and hung up.
Her symptoms intensified and she became quite sick, especially so when another staff member informed
her that Mr Gashi had been into DJs that day and had been chatting and laughing with Mr Nunn at the
counter. It was obvious to her that Mr Nunn and Mr Gashi were sticking together.
On Thursday 14 October she was feeling very depressed and her daughters were feeling unhappy about
how she had been. Scott decided to take them all out of the house for a couple of hours and they ended
up at a bowling alley in Surfers Paradise. As they were standing at the counter getting their shoes she
turned around and saw Mr Gashi standing "a foot behind me, staring at me. I cannot find the words to
describe how that made me feel. We decided to stay, and let the girls enjoy the night. Omar sat beside
the counter, and stared at me, consistently on his mobile phone, texting and talking on it, all while
glaring at me.".
"When we finished our games, we went back to the counter to hand in our shoes, Omar was watching,
and he got up and ran up the stairs to the entrance. Scott and I were not sure if he was up there waiting
for us, or whether he had called friends to meet him. Panicking, we found a side exit, which we ran out
of and back to our car as fast as we could. We also went a different way home, to make sure Omar was
not following us. As we neared Robina, where we live, we spotted Omar in his car near Scott's unit.
My desire to leave the house at all after this was completely gone.".
Scott's flat mate Henry Phu, who also worked at DJs and had given a statement to Mr Larsen regarding
Mr Gashi, received a message "letting him know that Omar knew he had given a statement against him,
and wanted to know if he still lived in the same place.".
On the following day Mr Phu received another message from Mr Gashi letting him know that he
assumed that he (Phu) and Scott still lived in the same house.
On Monday 18 October 2010 she went to Robina Police Station to report the phone calls and messages
as well as the incident at the bowling alley.
"This whole situation has left me, not only in an unfit condition, not just to work, but to care for my
family. I am upset and disappointed that it has come to this. If management had just listened and acted
on it months ago, I would not be in this predicament, having to constantly look over my shoulder for a
shaved headed, tattooed cage fighter, who at the end of the day, simply did not perform his duties as a
David Jones employee, and also importantly bought (sic) illegal drugs into the workplace. He has
intimidated many staff members over the months, which I believe is why there hasn't been several more
complaints made about him. I am worried about my future career, as I have obviously had no support
from David Jones Management; if I am forced to leave my job, what kind of reference will they give a
future possible employer for me?".
7
[25]
In another statement, dated 13 March 2011, Ms Zahner provided further and additional information in relation to
her encounters with Mr Gashi and her discussions with Mr Nunn about Mr Gashi's behaviour. Rather than being
exhaustive, by recounting all of this material, I have selected a number of points made by Ms Zahner in her
statement to record its general flavour, as follows:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)
(v)
[26]
Mr Gashi asked her on a few occasions why she wasn't wearing any makeup and told her that she
needed to go and put some on;
On a few occasions he asked her what perfume she was wearing and said "You stink.".
He would "randomly on numerous occasions" have a go at her about her hair and tell her how
disgusting it was.
Mr Gashi's comments were often overheard by Mr Nunn who considered them to be funny and he
would laugh.
Mr Gashi had a go at her about the fact she was going out with a cleaner and asked her whether that was
the best she could do for herself and questioned whether her standards were a little low.
On one occasion she asked Mr Gashi what she was going to do with all of the clothes hangers on a rack
and he looked at her and said, in a nasty tone, "Why don't you go and hang yourself?".
Towards the end of August Mr Gashi told her and another staff member that if a woman did the wrong
thing by him then, in accordance with his religion, he had the right to knock them around.
Mr Gashi would tell her to "Fuck off" on most days if she asked him to do anything, sometimes in a
very aggressive tone.
Prior to going into the meeting with Ms Harwood and Mr Nunn on 5 October 2010 Mr Nunn told her to
be very careful how she handled the situation because it would determine her career with David Jones.
Mr Nunn then told her not to mention the drugs because she would look like an idiot by not reporting it
to anyone. "At that point I told Troy I had reported the drugs to him at which point he looked at me and
said in a stern and serious voice 'don't mention the drugs'.".
She stood by her statement to Ms Harwood and Mr Nunn given on 5 October 2010 to the effect she had
been having a "serious" problem with Mr Gashi for around six weeks.
She stood by her comments to WorkCover (in October 2010) to the effect that her symptoms started in
approximately May 2010 when her working environment became too stressful and nothing was done
about it by management.
While Mr Gashi had been rude up until about May 2010, he became a lot more intimidating and harder
to deal with after the drugs incident.
She maintained she had complained to Mr Nunn shortly after Mr Gashi started in the department about
his work ethic and unacceptable behaviour towards her generally.
She maintained that her complaints to Mr Nunn about Mr Gashi's behaviour were ongoing and that it
was in about the last two weeks of his employment with DJs (before he moved to French Connection in
late August early/September 2010) that his behaviour became unbearable. It was at this time that she
told Mr Nunn that Mr Gashi's behaviour was making her not want to come to work. She also told Mr
Nunn that she was "becoming highly strung and that the menswear department had become a stressful
area to work in and it was affecting everyone.".
She maintained her allegation that Mr Nunn had previously told staff that they were only to go to him
regarding any complaints in the department because he wanted to keep all problems within the
department.
She did not use DJs' ethics hotline because she knew that another staff member had done so earlier in
the year, after several problems with Mr Nunn, but they did not resolve her issues.
Her complaints to Mr Nunn were made on a one-on-one basis, rather than going through other channels,
because she was specifically warned by Mr Nunn not to take matters outside the department.
Mr Gashi's abusive and rude behaviour towards her worsened after Mr Nunn started telling Mr Gashi
about her complaints towards him regarding the drugs in May.
The reason she did not disclose the true extent of Mr Gashi's behaviour during her interview with Ms
Harwood and Mr Nunn on 5 October 2010 was because she felt intimidated and scared because of what
Mr Nunn said to her before going into the meeting, as well as the fact Mr Nunn was sitting next to her.
It was not until the next day that she "opened up" to Mr Larsen in her telephone conversation with him.
She did advise Mr Berantai that she had raised issues with Mr Nunn on several occasions.
The first time she attempted to speak to the store Manager, Ms Dunn, regarding her concerns was on
5 October 2010. The reason she had not previously complained to Ms Dunn was because Mr Nunn had
told her not to.
Under cross-examination Ms Zahner accepted she was told as early as 8 October 2010 that Ms Gashi would no
longer be working in DJs' Robina store. She also agreed that as at 8 October 2010 her position was that she was
not going to go back to work until something was done about Mr Nunn. In this respect she said Mr Nunn's
"management ability was very below average and I don't believe that he should have been in that position … the
way he treated his staff and the way that he had allowed bullying to continue and drugs in his workplace, well,
he really wasn't David Jones' material." (Transcript 2-25).
8
[27]
Although there were issues with Mr Gashi's work ethic and overall behaviour it was not until about July 2010
that "he really started to hone in more on me" and she would describe his behaviour over the next three months
as both bullying and harassing (Transcript 2-27).
[28]
Ms Zahner was also taken to the record of interview prepared by Ms Harwood on 5 October 2010 (see paragraph
[21] above). She disagreed with a number of matters which Ms Harwood had recorded, as follows:
(a)
(b)
(c)
(d)
She told Ms Harwood that the last six weeks with Mr Gashi had been "unbearable" ([21](a)).
She went into a lot more detail than the comment attributed to her at [21](b).
The example attributed to her at [21](d) would have been one of the things that she told Ms Harwood.
She did not make the comments attributed to her at [21](e), stating that Ms Harwood had used her own
words and exaggerated. Further "there's a lot in there that isn't quite true" and "there's a couple of
things in here that - that aren't just quite right. … I told Megan exactly how abusive and bullying Omar
was because that is why Stefan rang me the next day …" (Transcript 2-34).
(e) The comment attributed to her at [21](h) was incorrect. She did not say why she held this view but
went on to say that Ms Harwood was "part of management" at DJs and "in my view management have
certainly stuck together in David Jones." (Transcript 2-35).
(f) She did not believe she made the comment "I didn't know it was serious" attributed to her at [21](k).
(g) Although she did state she was prepared to meet Mr Gashi to try to resolve the issue she was not happy
about that because "I was sitting beside a manager who had intimidated me and had told me what I was
to say and not to say …" (Transcript 2-38). It was also because Mr Nunn was sitting next to her that
there was no mention of drugs. She only agreed to the prospect of meeting with Mr Gashi because "I
was extremely distressed at the time. I had two people who were not taking me seriously, they were
manipulating me and I said what I said and I was an absolute mess and that's why, when I walked out, I
had a headache and I vomited, because I could not believe that that was the way it was handled.
Nobody took me seriously. How can you not take drugs and bullying seriously? How can you not?
And they did not." (Transcript 2-39).
(h) Ms Harwood was manipulative and not taking her seriously "because she told me she did not want this
taken any further. She wanted this to be sorted out quietly without anybody knowing.". This was said at
the beginning of the conversation. "She wanted it resolved very quickly without it going any further."
(Transcript 2-39).
(i) The omissions in Ms Harwood's document were "probably why I never got a copy until yesterday".
[29]
In relation to her telephone interview with Mr Larsen, Ms Zahner said she told Mr Larsen in the course of their
discussion that she also wanted Mr Nunn "out" (as in "out of the store") but he did not record this comment
(Transcript 2-47). He (Nunn) had to be disciplined or something of that order (Transcript 2-48).
[30]
Ms Zahner confirmed it was her position that, on or around 8 October 2010, she wanted Mr Nunn gone, saying
"that's exactly what I wanted … he was not management material … I don't find any manager that - that thinks
that it's ok to have illegal substances in their store (is) able to be a manager." (Transcript 2-49). She also said
that she had never seen Mr Nunn with any drugs "but if I had a staff member that had drugs, I would dismiss
them." (Transcript 2-49).
[31]
Ms Zahner said that although she had been offered employment at another DJs' store at Harbour Town she had
refused that approach. She had been advised by her psychologist that it would not be the best thing for her
mental state. "Until this day" she could not walk into a DJs' store because it was just too upsetting.
[32]
Ms Zahner also acknowledged that the first time she had spoken to her GP, Dr Tiller, about any issues she was
having in the workplace was when she visited him on 7 October 2010 and he provided her with a Workers'
Compensation Medical Certificate. Further, she also agreed she had told her partner, Mr Byrnes, that she had
suffered a miscarriage in late August 2010 when, in fact, she had a termination. She subsequently informed Mr
Byrnes of the true situation (although she did not mention when).
[33]
Mr Scott Byrnes' statement of evidence (Exhibit 10) contained much hearsay evidence which I do not intend to
refer to. However, Mr Byrnes also recorded a number matters which Ms Zahner is said to have told him which I
will make reference to, where relevant. Mr Byrnes' statement contained the following information and
comments:
(a)
He was scared of Mr Gashi because he had mentioned in the past that he was associated with the
Bandidos bikie gang. He was also a bit scary because of his appearances.
(b) Mr Gashi told Mr Byrnes' flatmate, Mr Phu, that if a woman did him wrong he felt it was ok to smack
her around a bit.
(c) When Ms Zahner started telling him about the problems she was having with Mr Gashi he recalled Mr
Gashi's earlier comments to Mr Phu (above at [33](b)) and became concerned for her wellbeing. He
also told her about Mr Gashi's comment and she was afraid of him from that time on.
9
(d) Shortly after Mr Gashi commenced working for DJs Ms Zahner came home and told him she could not
understand why she and the other girls had to do all of the work when Mr Gashi and Mr Nunn just stood
around talking. She would come home and complain about things Mr Gashi had done at least two to
three times a week. There were many occasions when she came home and told him that she had words
with Mr Nunn about Mr Gashi's behaviour but Mr Nunn did nothing about it.
(e) During the last four months of her employment Ms Zahner would come home and tell him that she had
made a complaint about Mr Gashi to Mr Nunn and shortly after doing so Mr Gashi would come and tell
her exactly what she had told Mr Nunn. This would happen about once a fortnight. He (Byrnes) told
her to go and see Anita Dunn or Attila Berantai.
(f) Ms Zahner told him about the events of 3 October 2010 when she finished work that day. She told him
that she went to see Mr Berantai about Mr Gashi and that he asked her if she had spoken to Mr Nunn
about Mr Gashi and his behaviour.
(g) Ms Zahner also told him that she spoke with Anita Dunn about the problem after speaking with Mr
Berantai but Ms Dunn did not do anything either.
(h) During the period February/March to October 2010 Ms Zahner told him that Mr Gashi would speak to
her and the other female co-workers like they were pigs, that he would never do any work around the
store and that he would take one and a half hour lunch breaks.
(i) "We found out that Omar was dealing drugs to Troy and when we learned this we realised why Troy did
not do anything about it because Omar was his dealer.".
(j) He knew that Mr Gashi was Mr Nunn's dealer because he (Gashi) would tell everyone that he was
dealing drugs, especially to Mr Nunn.
(k) One morning he went to see Mr Berantai and told him to do something about Mr Gashi because Ms
Zahner was a mess and Mr Nunn was not doing anything about the bullying and harassment that she
was being subjected to.
(l) The following day Mr Nunn (allegedly) went to Ms Zahner and told her to tell him (Byrnes) to keep out
of it.
(m) If he was to "hazard a guess" he would estimate that Ms Zahner complained to Mr Nunn "numerous
times" and she went to Mr Berantai "once or twice". She also tried to meet with Ms Dunn but Ms Dunn
told her she was too busy to talk.
(n) In the last two months of working at DJs Ms Zahner would come home in tears and she would cry
before going to work.
(o) On the day that Ms Zahner left employment (5 October 2010) he found her outside after she text
messaged him. She was crying uncontrollably and told him that she was on her way to Ms Dunn's
office when Mr Nunn pulled her aside and told her not to complain to management because how she
dealt with the situation would determine her ability to move up into management.
[34]
Under cross-examination, Mr Byrnes rejected the contention put to him that he had informed Mr Larsen, during
the time of his investigation about Ms Zahner's complaints, that she had lost twins through her miscarriage which
had been caused by the stress at work (Transcript 1-61).
[35]
Mr Byrnes also claimed to have spoken to Mr Berantai and "a few people" before 3 October 2010 to mention
what was going on and to tell them "someone needs to protect Janine here because Troy's not doing ...". One
such person was Sharon Scott, or Sharon Smith, who was the (joint) second in-charge of the store at the time.
Mr Byrnes claimed that he sat in her office and told her about what was going on. This was "weeks" before 3
October 2010 (Transcript 2-62).
[36]
After 3 October 2010 he confronted Mr Nunn in a mangers' meeting one day (it was a Friday) and told him to
pull his head in and stop telling lies because Janine was hurt. As a result of this event he was told to leave the
store and never come back.
[37]
Mr Byrnes said he also had a vague recollection of speaking with Ms Harwood on 5 October 2010 after Ms
Zahner went home. However, he could not remember much of what was said because "it was a long time ago".
[38]
He also said that it was "common knowledge" that Mr Gashi and Mr Nunn had a drug-dealing relationship
because Mr Gashi would tell him in the smoking area that "he's dealing to Troy so he's untouchable and was
bragging about it to everyone." (Transcript 2-65).
[39]
Mr Byrnes also said he was under the impression for (only) "two to three weeks" that Ms Zahner had suffered a
miscarriage then they sat down and she told him what really happened. That was when they came to the
conclusion that it was probably for the best.
[40]
Mr Henry Phu said he worked in the electrical department of DJs at Robina and came to know Mr Gashi when
he worked briefly in that department before moving to the menswear department. Mr Phu recalled that in or
around September 2010 he was talking to Mr Gashi before work in the lunch room and he witnessed Mr Gashi
remove (he did not say from where) a regular sandwich-sized bag of marijuana and put it in the cupboard. He
asked Mr Gashi what it was and Mr Gashi told him it was marijuana for Mr Nunn. When they went outside for a
10
cigarette Mr Gashi told him he supplied Mr Nunn with drugs on a regular basis. He did not say what sort of
drugs or how often.
[41]
Mr Phu also said Ms Zahner and Mr Byrnes had told him in detail about "the harassment she has received from
Omar and the lack of management action from Troy since around August/September 2010." (Exhibit 13,
paragraph 16). He said he had "many conversations with Janine with regard to her issues at work at David
Jones, specifically that she felt that she was being harassed by Management and that Troy constantly ignored
her complaints about Omar." (Exhibit 13, paragraph 17). She also advised him "that she was aware that Omar
was selling drugs to Troy." (Exhibit 13, paragraph 16).
[42]
Ms Zahner also told him about conversations she had had with Mr Nunn about Mr Gashi's bullying and
intimidation in the workplace in or around August/September 2010. He also noticed that in or around September
2010 Ms Zahner's overall mood and presence declined dramatically.
[43]
Under cross-examination Mr Phu agreed that he told Mr Larsen, on 6 October 2010, that he had never seen Mr
Gashi use or bring any drugs into the store. However, he had subsequently prepared and signed a Statutory
Declaration on 12 November 2010 to reflect what is recorded in paragraph [40] above. He denied changing his
version of events because of any suggestions from, or pressure by, either Mr Byrnes or Ms Zahner, saying that
they respected his decision to tell Mr Larsen that he knew nothing about any drugs. He only prepared his
Statutory Declaration "because I wanted to, (and) … I just wanted to do the right thing." (Transcript 2-75).
[44]
Ms Sioban Bradley said she worked at DJs at Robina between November 2009 and June 2010. During most of
that time Mr Nunn was her direct manager.
[45]
In her statement (Exhibit 14) Ms Bradley spoke quite negatively about Mr Nunn's performance as a manager,
stating he was rude and unprofessional towards staff members; that he was derogatory towards staff; that he said
inappropriate things about other staff members (including his own staff); that he never had a nice comment to
say about anyone; and, that he was an extremely negative person. In the course of her oral evidence she said she
heard Mr Nunn, on one occasion, describe Ms Zahner as "lazy".
[46]
Ms Bradley said there were occasions when Mr Nunn would get her to delegate tasks to various staff members
"and he would expect me to delegate like a tyrant." (Exhibit 14, paragraph 12). There were also occasions where
she "tried to mediate with Troy and Troy denied everything and lied and behaved in an unprofessional manner."
(Exhibit 14, paragraph 19). Ms Bradley also tried to resign to Ms Dunn, without success, from her position on
two occasions because of the manner in which Mr Nunn treated people and was eventually transferred to another
department in or about May 2010. However, she could not find the words to explain to Ms Dunn why she
wanted to resign because she "didn't always have the specifics.".
[47]
While she was working in menswear she did not witness Mr Gashi treat any member of staff in a manner that she
would consider to be bullying. Further, she did not witness anything going on between Mr Gashi and Ms Zahner
and Ms Zahner never made any complaints about the manner in which Mr Gashi was treating her. In addition,
she had never witnessed Mr Gashi abuse customers but did hear him, on a number of occasions, put down one
particular staff member.
[48]
Ms Bradley also said Mr Nunn had told her on a number of occasions that he had taken drugs, specifically
cocaine. She remembered him saying he had taken cocaine around Christmas and the New Year period
(presumably 2009/2010).
[49]
Under cross-examination Ms Bradley acknowledged she had not included her comment to the effect that Mr
Nunn had described Ms Zahner as lazy in her formal statement, only adding that evidence during her
examination-in-chief. She attributed her failure to do this as "possibly being nervous" when she gave her
statement, however she subsequently had plenty of time to reflect on the matter.
[50]
Under further cross-examination Ms Bradley appeared to state that Mr Nunn told her about taking cocaine on the
occasion of their joint walk around the department about a week before she commenced employment. However,
she varied this answer (after an intervention by Ms Zahner's Counsel about the nature of the question and her
response) stating that it wasn't on the first day, it "happened during - during our few months together … around
the time he was doing it, which would have been Christmas." (Transcript 3-16 to 17). Ms Bradley also said Mr
Nunn made this comment as they were "walking around the floor" later changing it to "at work, either on the
floor or in the reserve", later saying "definitely I remember speaking in the reserve", then stating "it was in the
reserve and it was on the floor" and "it was on a couple of occasions" (Transcript 3-17 to 18).
Medical evidence
[51]
Dr Karen Chau, a Psychiatrist, interviewed and examined Ms Zahner on 15 December 2010 at the request of
WorkCover. In the course of her report, dated 21 December 2010 (Exhibit 16), Dr Chou wrote:
11
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
"Ms Zahner stated that the first time she felt harassed and threatened by Omar was on 03 October 2010
however she had been 'putting up with a lot for months' prior to this date. She said he would make
general comments and 'used to make it well known that he is best mates with the Bandidos bikie gang'.
If he was upset by someone he would say 'It won't be me who handles things. It would be the
Bandidos'. She added, 'I don't know if he was trying to intimidate us or not'." (page 2).
"She felt disappointed with how David Jones management dealt with the matter. She said, 'I used to tell
Troy (about Omar's behaviour) and it got me nowhere'. She stated that Troy related the discussions
back to Omar 'and he (Omar) got filthier with me'." (page 2).
"She stated that she made a police statement against him 'after he followed me to bowling'. When he
discovered this 'he backed off' then." (page 2).
"Ms Zahner stated that since that time, she experienced 'a lot of nightmares about Omar and work'.
Initially it was on a daily basis however it now only occurred a few times per week. The dreams were
of different themes but often involved her being physically attacked by Omar and not being able to
escape or scream out." (page 3).
"She avoided the David Jones store because of memories of the work incidents. She also tried to avoid
thinking about the incidents. She added, 'I've worked (my) butt off for them (David Jones) and I feel I've
been kicked in the guts. Not one manager has called me to see how I've gone … very disappointing'."
(page 3).
"It was reported that since she saw Omar at bowling, she experienced panic attacks whenever she was in
crowds or in a loud environment. She said, 'He scared the life out of me' on the night of the bowling.
She added, 'I haven't wanted to leave the house since then'." (page 4).
"She worked full-time at David Jones previously and stated that all her performance reviews were 'all
good'. In the couple of months prior to October 2010, Troy reportedly mentioned that, 'I seemed highly
strung'. She noticed lowered concentration with the 'build up of stress' and added, 'I was making silly
mistakes I never used to make before'. Her supervisor and manager were reported to have noticed this."
(page 5).
"Ms Zahner's partner of five months 'lost his job because of me' (over the David Jones work stress). She
described her partner as supportive." (page 5).
"Ms Zahner described herself as a perfectionist at work and added, 'I like to set myself goals and
achieve them. I should have been promoted by now'." (page 7).
"Ms Zahner completed the DASS 21. She scored in the extremely severe ranges for depression, anxiety
and stress." (page 7).
"General practitioner, Dr David Bartlett, wrote a letter to WorkCover dated 10 November 2010, which
stated 'I can confirm that the clinical notes describe stressors in Janine's current illness being related to
drug taking at her workplace, David Jones, by her manager and also a co-worker. She has reported to
Dr Tiller that she 'blew the whistle' on his behaviour and has since suffered intimidation, bullying and
harassment. This has caused her to have nightmares, have anxiety, intrusive thoughts and required
medication and psychological counselling'." (page 7).
"... Janine refused to return to work until the HR investigation had determined what disciplinary action
would be taken against her manager, Troy Nunn. David Jones' investigation found no information to
support Janine's claim that she had repeatedly reported Omar's behaviour to her manager, Troy Nunn.
David Jones was unable to find any reports that Janine had advised the ethics hotline or another
manager of Omar's behaviour until 03 October 2010." (page 8).
"Ms Zahner has adjustment disorder with mixed anxiety and depressed mood." (page 9).
"The diagnosis is consistent with having being caused by subjective work stress." (page 9).
[52]
Under cross-examination, Dr Chau agreed that, generally speaking, she set out to gather from a person such as
Ms Zahner a history of what she said, what her experiences had been and so on and that it was important she
recorded this history correctly. She also agreed that where she had used inverted commas in her report that was
a direct quote of what Ms Zahner had told her.
[53]
Dr Chau also accepted that one of a number of stress components impacting upon Ms Zahner's condition was her
belief that her partner had "lost his job because of me".
[54]
Dr Chau acknowledged that Ms Zahner had not mentioned to her that she had a pregnancy termination in August
2010. She also said without knowing the facts of the situation it was difficult for her to comment upon whether
such scenario could be provocative of a good measure of stress. "I suppose everyone reacts to that type of
situation differently …". Nonetheless, it could potentially be causative of a fair amount of personal stress.
(Transcript 3-5 to 6).
[55]
Under further cross-examination, after answering an additional question put to her by Ms McClymont, Counsel
for Ms Zahner, Dr Chau agreed that, based upon the history she had taken from Ms Zahner, the comments
recorded in the GP's notes on 7 October 2010, when he wrote his Medical Certificate, reflected the operative
stressors which caused her to leave work. Relevantly, this comment was: "Whistle blew at work co worker and
manager taking drugs - pressure from Hr and co workers.".
12
[56]
Dr Robert Tiller, a General Practitioner practicing at the Robina Town Medical Centre, said he had been treating
Ms Zahner since approximately 2005. Dr Tiller said Ms Zahner seemed very agitated, upset, crying, shaking and
extremely anxious when he saw her on 7 October 2010. She told him she had blown the whistle on some
co-workers who had been "taking drugs or dealing with drugs, or exchanging drugs at work, and that this had
sort of blown up to a point where she had approached the management and she had been receiving some
pressure from management and dealing with relationships with co-workers …she said that this had been going
on for some time but it had reached the point on that day or - I mean the previous day or two before I saw her …
it had reached a crisis point where she had - she approached the management and received sort of back pressure
from the management to not to proceed or to, you know, remain silent on it." (Transcript 3-21).
[57]
Dr Tiller also opined that he did not believe that the termination of her pregnancy played any part in the
condition for which he certified Ms Zahner as being unfit for work on 7 October 2010. "She got pregnant; she
had the termination. There was no time that she was upset about that and my memory (was) that she was
actually just relieved that the situation was over and there wasn't any residual anxiety that carried on from the
termination." (Transcript 3-22).
[58]
Under cross-examination Dr Tiller agreed that Ms Zahner had visited the practice on 5 March, 29 July, 9 August,
26 August and 8 September 2010 and that none of the clinical notes for those visits recorded any complaints in
relation to any workplace stress issues.
[59]
Dr Tiller also said he was not aware of the circumstances surrounding Ms Zahner's pregnancy nor the fact she
had commenced a relationship with Mr Byrnes in July 2010. He was also unaware that Ms Zahner had conveyed
to Mr Byrnes she had suffered a miscarriage as opposed to having undergone a termination. Dr Tiller also
(cautiously) acknowledged that becoming pregnant without intent and having a termination did cause stress and
could cause some emotional situations (Transcript 3-24).
[60]
Dr Andrew Byth, a Psychiatrist, saw Ms Zahner on 26 August 2011 for the purposes of preparing a medico-legal
report (Exhibit 15) for her lawyers.
[61]
Under the heading "History from Examinee" Dr Byth wrote:
"2.1
Janine Zahner complained of adverse effects from stress in her previous work at a department store in
February 2010.
2.2
She recalled 'working at the department store and selling menswear, and we had a good team and I
loved working there, until another retail assistant, Omar, began working there in February 2010'.
2.3
She recalled 'worrying that Omar said he was a cave (sic) fighter and a Muslim, and he had a shaved
head and tattoos, and he came across as tough and superior, like he had no respect for women as part
of his religion.'
2.4
Shortly after he started work with her, she was 'noticing Omar felt he did not have to do any work with
us, and he said - I am only giving $17/hr, and I am not going to help with the work - and he took long
breaks and would not help with the workload.'
2.5
She was then 'trying to be extremely nice to Omar, but another worker, Kylie, complained to the
manager about his lack of co-operation and his long breaks, and she would bite back and argue
constantly with Omar, and she got a transfer out.'
2.6
Around this time, she was 'getting intimidated by Omar, he was telling me to f..k off, and I complained
to the manager, Troy about him, but then Troy told Omar about my complaint, which made Omar
more angry with me.'
2.7
She then complained of 'being threatened by Omar who said - I will get my gang mates, the Bandidos,
to deal with you, like I know your car and I can follow you home - 2 weeks later, he followed me and
my daughters into a bowling alley on a weekend and glared at me, and I was never so scared in my
life.'
2.8
Before she left work on October 2010, she recalled 'being very busy at work in a big sale, and Omar
was being nasty and rude, and he would not help with the long queue of customers; and he upset me
by saying I was wanted on the phone and then slamming the phone down saying - It was f..king me on
the phone.'
2.9
She reported this incident to the then manager, Attila, who said the matter would be passed on to the
usual manager, Troy.
13
[62]
[63]
2.10
The next day she recalled 'reporting the incident to Troy, and I also reported Omar for offering to sell
Kylie and me a bag of white power, amphetamine - Troy told me not to mention Omar was selling
drugs, or I would have no future in the department store.'
2.11
She was then 'told to go to a meeting with Troy and another manager, and I complained how rude and
aggressive Omar was, and that he was selling drugs at work; but they were not supportive, and they
tried to intimidate me into not reporting the drug dealing.'
2.12
She then felt she could not cope at work, and she recalled 'trying to keep going to work, but then Omar
started laughing at me and I was crying - I had to go home, and I vomited in the car park on the way
home, and I could not go back.' ".
In relation to psychological symptoms Dr Byth recorded:
"3.2
Shortly after leaving work, she recalled 'being telephoned by Human Resources, who said that I had
made a serious complaint about Omar, and I told them that Omar was selling drugs at work, and that
Omar said he was supplying amphetamine to the head of security, as well as supplying marijuana to
Troy - I was told I was entitled to stress leave over it.'
3.3
She was then 'getting anxious about nuisance telephone calls on my private number, and my boyfriend
and his flatmate were getting threatening text and Facebook messages saying - Be careful, you've
already got one foot in the grave.'
3.4
She was 'getting too scared to leave the house, and then Omar followed me and my daughters to a
bowling alley, and I went to the police about him - the police said they had no proof he had followed
me there, but they know of him already.'
3.5
About 5 days after she left work, she was 'made aware that Omar had been sacked for selling drugs at
work, and there was an investigation in the store; but the management had not reported him to the
police, and apparently Troy pleaded ignorance to Omar selling drugs and bullying people.'
3.6
She had trouble sleeping, and she was 'getting bad nightmares which were vivid and recurring, seeing
Omar breaking into my bedroom, and Omar strangling me from behind and I cannot get any help, or
being chased by Omar and shot by him.'
3.7
During the day, she was 'getting flashbacks with images and replays of remembering Omar being
aggressive, especially if I went to the department store or saw its logo, like I had the same anxiety.' ".
Elsewhere in his report Dr Byth recorded:
"4.6
She is 'feeling very let down by my employer at the department store and by authority figures there;
and by the other female workers who said they would back up my story but pulled out as witnesses,
which crushed me.' ".
[64]
Dr Byth opined that Ms Zahner's diagnosis under DSM IV is of Posttraumatic Stress Disorder (PTSD) which
was somewhat more severe than are usually seen in an uncomplicated PTSD and would justify the additional
diagnosis of Adjustment Disorder with depressed mood.
[65]
Dr Byth also wrote:
"13.1 Following her complaints of harassment at work by a co-worker in 2010, and her complaints of being
poorly treated by management, Janine Zahner has been suffering from Posttraumatic Stress Disorder,
with prominent associated anxiety and depression.
13.2
This psychiatric condition was caused by the psychological trauma she experienced at the time of her
leaving work in October 2010, when she felt threatened and intimidated by another worker,
particularly after she notified her employer that he was selling drugs at work. She also felt let down
and unsupported by her manager, and she was concerned that she was advised against reporting the
sale of drugs and have (sic) been bullied at work, which resulted in her feeling ostracised and isolated
in the workplace.
…
15.7
The written statements of Janine Zahner were consistent with the history she gave to me at my
interview.
14
15.8
Overall, these documents were consistent with her complaints of being threatened and harassed at
work, and with her feeling let down by her employer in handling her complaints; and with her
subsequently requiring extensive psychological treatment.
15.9
I found that, as a result of stressful events in her work in 2010, she has developed Posttraumatic Stress
Disorder, along with prominent anxiety and depression. This condition is causing moderate
psychiatric impairment and will need specialist treatment over the next 2 years.".
[66]
Under cross-examination Dr Byth agreed that where he used quotation marks in his report it was a direct
reference to what Ms Zahner told him.
[67]
Dr Byth did not recall Ms Zahner mentioning the termination of her pregnancy in August 2010. He said that
termination of her pregnancy could have affected her in different ways. She might have been pleased not to have
to carry through with the pregnancy or she might have been in a state of grief about having to unwillingly give
up a possible childbirth. He also accepted that hiding the termination from her partner and, instead, telling him
she had suffered a miscarriage could potentially add some stress in her personal life.
[68]
Dr Byth also agreed that a diagnosis of PTSD was usually associated with exposure to an extreme traumatic
stressor which involved some sort of direct personal experience of an event involving actual or threatened death,
serious injury or other threat to ones physical integrity. However, he also said that the diagnosis for PTSD had
been reviewed and expanded to suit civilian circumstances. In this instance he believed Ms Zahner told him she
felt very threatened by Mr Gashi at work "and he was threatening to have her assaulted by some bikie friend of
his … and there was a threat and he was swearing at her and he followed her somewhere after work with her
daughter …". He opined that this threat to her personal integrity, followed by flash backs and nightmares
reliving the event, was characteristic of PTSD.
The case on behalf of Q-COMP
[69]
Mr Troy Nunn said he was the sales manager in the menswear department at DJs during the period of Ms
Zahner's employment. On 7 October 2010 he was interviewed by Mr Larsen and responded to a number of
questions he was asked. He was asked additional questions on 14 October and 4 November 2010 and
28 February 2011. He agreed that the record of interview completed by Mr Larsen (Exhibit 23) accurately
recorded his version of events. As such, he adopted it as his evidence for these proceedings.
[70]
In the course of his interview with Mr Larsen on 7 October 2010 Mr Nunn is recorded as having made the
following points:
(a)
As far as he was aware Ms Zahner and Mr Gashi were friends, including on Facebook. He heard bits
and pieces on the floor but classed it as a "jovial type of banter". He had spoken to all of the staff in the
department to make sure that none of them "crossed the line". However, he had never seen anything
that would make him think that Ms Zahner and Mr Gashi were not friends.
(b) When Mr Gashi resigned to move to French Connection, Ms Zahner told him she was concerned that
Mr Gashi was not doing his fair share of work. He told Ms Zahner it was not her concern and that she
just needed to concentrate on her role. He told her Mr Gashi was doing what he had asked him to do,
which was looking after the counter while the rest of the staff were doing stock work.
(c) On Monday 4 October 2010 she came in to work in casual clothes and stated she had had enough of
Omar, he was a "prick" and that "she had a gutful of all men". He told her she should document her
issues and she told him that was what she was going to do. He also asked if she had discussed the
matter with Mr Gashi and she responded by saying that she had had enough and "wanted to do it all for
them" (i.e. the people in her department).
(d) On the following day, he asked her for her letter of complaint and she told him that her printer was not
working and an email she sent to her father did not work either. Mr Nunn said he offered
conciliation/mediation or she could confront Mr Gashi directly. Ms Zahner told him that Mr Gashi was
telling everyone that "he is your drug dealer". Mr Nunn asked her who was making comments like that
but she declined to give any names. Mr Nunn said he advised Ms Zahner that she needed to be careful
about who she was listening to, especially when it involved himself. He reiterated to her that she should
not listen to or feed gossip.
(e) After the meeting between himself, Ms Harwood and Ms Zahner she came back into the store and told
him she "could not handle this". He followed her to the counter to enquire about what was wrong. She
told him "I don't come to work to deal with this shit.". He took her to the management office and
offered her a break or an opportunity to lie down. She told him she would like to go for a coffee. As
she collected her bags he asked if she would give him a call. A little while later a security officer told
him she was outside in the car park, crying. He went to the car park but could not locate her. He came
inside and was told by the Loss Prevention Officer that Scott Byrnes had asked him to tell Mr Nunn that
Ms Zahner had gone home crying.
15
(f)
He called her several times throughout the afternoon then finally spoke to her at about 6.00 p.m. Ms
Zahner explained to him that she was vomiting in the car park and had to go home. He let her know
they had spoken to Mr Gashi and he was happy to sit down and have a chat and "that we were here to
support her in regards to anything that she wanted to do.".
(g) Ms Zahner had not previously reported Mr Gashi's aggressive behaviour. The only thing she had
reported was that Mr Gashi was not doing enough work (see paragraph [70](b) above).
(h) He was not aware that Mr Gashi had been aggressive to, or had conflict with, a few of the team
members. No one had reported that to him.
(i) Ms Zahner had only mentioned the incident between Mr Gashi and the Titans fan during the course of
the meeting with Ms Harwood and himself on 5 October 2010.
(j) Ms Zahner "never" reported to him that Mr Gashi had drugs on him or that she had seen him with drugs.
The first time he heard that Mr Gashi was saying he was his (Nunn's) drug dealer was during his
meeting with Ms Zahner on Tuesday morning.
(k) On the morning of 5 October he spoke to Ms Zahner in the small interview room next to Sharon Scott's
office and he asked her if she had her letter of complaint. As soon as she mentioned drugs he explained
to her that he would probably get Megan Harwood involved and that he would also discuss the matter
with Ms Dunn. Ms Zahner also mentioned she was open to discussing the issues she had with Mr Gashi
directly with him (Gashi).
(l) He had never told her not to go to Ms Dunn. He had told her that the process would be for her to raise
her complaint with him (Nunn) and he would escalate the matter through Ms Dunn "which I did".
[71]
In the course of further examination-in-chief Mr Nunn said Ms Zahner did not convey to him that her comment
about Mr Gashi being his (Nunn's) drug dealer was going to be the subject of a complaint by her regarding
himself. "I took that as a threat when it was said to me.".
[72]
Mr Nunn said Ms Harwood became involved in the interview because he thought he should remove himself from
that role after Ms Zahner mentioned what Mr Gashi was telling everyone. "If there was comments to be made
about myself, I thought it best someone else do the meeting." (Transcript 4-43). As such, he asked Ms Harwood
if she could conduct the interview, which he sat through. At that stage they were just taking Ms Zahner's
statement and giving her the options of what she wanted to do. He didn't realise "the extent of it". In the course
of the interview Ms Zahner expressed some concerns about Mr Gashi and Ms Harwood gave her the options of
how she could have the matter handled. At the end of the meeting Ms Zahner "was wanting to have a mediation
or a discussion with Omar just about how they could sort things out.".
[73]
In response to specific questions put to him, Mr Nunn said the only complaint he received from Ms Zahner about
Mr Gashi was the one he mentioned above (at paragraph [70](b)), which he acted upon immediately. He also
said he knew of "no involvement of drugs in the store" and if that matter had been brought to his attention he
probably would have taken it to DJs' HR department.
[74]
Mr Nunn was as uncomplimentary about Ms Bradley as she was about him. He said she really was not up to the
job and was not completing tasks that he had given her to do. Ms Bradley had tried to befriend him but he did
not have personal relationships or socialise with people at work. He also denied telling her on a number of
occasions that he had consumed cocaine saying "that's totally untrue". He "definitely (did) not" have any
personal conversations with her along those lines.
[75]
Under cross-examination Mr Nunn agreed that in his first discussion with Ms Zahner on 5 October 2010 they
were alone and it was on that occasion she told him that Mr Gashi was telling everyone that he (Gashi) was his
(Nunn's) drug dealer. When he asked her who was saying that she told him she did not want to give names.
[76]
Mr Nunn also said Ms Zahner told him about Mr Gashi holding the phone above his head and shouting "it's not
my fucking job" in his first meeting with her on 5 October 2010. It was in this same meeting that she made a
comment about Mr Gashi threatening her which she altered, saying it was a comment Mr Gashi made to Nicole,
after he questioned further about it (Transcript 4-38).
[77]
Mr Nunn acknowledged that although Ms Zahner had told him that Mr Gashi was telling everyone he was his
drug dealer he did not report that comment to Ms Harwood, when he asked her to conduct the meeting, nor to Ms
Dunn when he checked with her whether it would be alright for Ms Harwood to conduct the meeting. He now
accepted that it was inappropriate for him to sit in on the meeting between Ms Harwood and Ms Zahner.
However, at the time, "there was nothing specific made to me".
[78]
He disagreed that it was inappropriate for him to suggest that Ms Zahner, Mr Gashi and himself sit down to try
to resolve issues stating that her issues were about bullying and that he did not know anything specific about the
drug dealer allegation at that time (Transcript 4-40). Ms Zahner had not made a specific complaint about Mr
Gashi saying he was his (Nunn's) drug dealer, "it was a comment." (Transcript 4-41).
16
[79]
Further, while accepting that Ms Zahner's comment about Mr Gashi telling everyone he was his (Nunn's) drug
dealer, that Mr Gashi shouted the words "it's not my fucking job", that Mr Gashi had indirectly threatened Ms
Zahner, and that those matters were serious allegations, Mr Nunn said he did not have a lot of specifics at that
stage. In addition, Ms Zahner was happy to have a chat to Mr Gashi about their differences.
[80]
Mr Nunn said he recalled Ms Zahner telling him and Ms Harwood that she felt sick coming to work, that she
knew what Mr Gashi was capable of outside of work and that she felt very threatened by him. However, he did
not believe it was inappropriate that mediation between her and Mr Gashi was suggested as a way forward
saying "she was offered all the options … whether she wanted to formalise the complaint, whether she wanted to
have a conciliation or mediation." (Transcript 4-43).
[81]
He also rejected any suggestion that Ms Zahner was distressed when she left the store, some time following the
meeting. He said he escorted her downstairs but did not see that she was distressed. She said she did not want to
be on the work floor itself. Later in the day, when he spoke to her on the telephone, she told him she had
vomited. He agreed that, notwithstanding this comment from Ms Zahner, he still suggested to her that Mr Gashi
was happy to sit down and have a chat with her.
[82]
Mr Nunn said he was not aware of a number of (alleged) inappropriate comments made by Mr Gashi towards
other staff members or that he swore on the sales floor (Transcript 4-45 to 49). However, he was aware, from
their actions and demeanour, that something had happened between Mr Gashi and Ms Webb (Transcript 4-46)
and he spoke to them about their jokes going too far. He also recalled talking to other team members about this
same issue on one single occasion. Mr Nunn also rejected a number of individual propositions put to him to the
effect that Ms Zahner had told him about inappropriate behaviour on Mr Gashi's part, that he was refusing to
help with the workload, that Mr Gashi had been swearing, that Mr Gashi had been rude to customers and that, on
one occasion, Mr Gashi had brought drugs into the store.
[83]
Similarly, he rejected the proposition that he told Ms Zahner, on the morning of 5 October 2010, that she was to
keep her allegations about Mr Gashi being his drug dealer quiet if she wished to be promoted within the store.
However, he did tell her not to feed gossip, which he did not agree was the same thing as telling her not to tell
anybody (Transcript 4-49).
[84]
Finally, Mr Nunn agreed that he had heard that Mr Gashi called Ms Zahner a liar (or a good liar). This was a
few weeks before the events of early October 2010. He was walking past Ms Zahner while she was on the phone
and she cupped her hand over the phone. Behind her Mr Gashi was mouthing that she was "having an
interview". He (Nunn) stayed working near her and heard her say something about concessions. After the call
finished he questioned her about the conversation and she made some comment about Kylie who worked for
French Connection in ladies wear, which did not make sense to him. However, within an hour he heard that Mr
Gashi had made a comment to Ms Zahner along the lines "you're a good liar …" which she did not take kindly
to. The next day she confronted him (Nunn) aggressively and rudely on the sales floor and told him she did not
have an interview.
[85]
Later, when he was questioned about this incident by Mr Larsen on 14 October 2010, Mr Nunn is recorded as
having said "there was no big discussion (between Ms Zahner and Mr Gashi). She was not offended however
was disturbed and thrown by his comment.". Mr Nunn said that despite being aware that Ms Zahner was
"disturbed and thrown" by Mr Gashi's comment he did not discuss the matter with him. At the time he did not
think it was going too far (Exhibit 23 and Transcript 4-50 to 52).
[86]
In re-examination Mr Nunn said that Ms Zahner did not complain to him about anything Mr Gashi said to her
when she spoke to him on the day following the telephone interview incident.
[87]
He also said that when Ms Zahner spoke to him on the morning of 5 October 2010 she did raise "some concerns"
she had and from his understanding, from talking to her, she was wanting to resolve those issues. She never
expressed any reservation in the meeting with Ms Harwood about being unable to ventilate any issues she
wanted to raise because of his presence.
[88]
Ms Megan Harwood said in her role as sales manager of homewares and bedding she was located on the ground
floor, level 1, and the menswear department was located on level 2. She knew both Mr Gashi and Ms Zahner as
employees who worked in menswear but had very little involvement with them. Ms Harwood said that Mr Nunn
asked her if she would take the interviews for him as he had not had a lot of experience and also because she was
impartial, not being on their floor and not being directly involved with either of them. In the course of the
morning she conducted an interview with Mr Gashi at 11.18 a.m. and with Ms Zahner at 11.40 a.m. Mr Nunn
was present during both interviews.
[89]
In respect of the latter meeting Ms Harwood recollected that at the end of the interview Ms Zahner started to
direct some questions to Mr Nunn but she reminded him that she (Harwood) was taking the meeting as she had
been asked to do. As such, Mr Nunn did not talk during the course of either of the interviews (Transcript 4-57).
17
[90]
After confirming that what she had recorded Ms Zahner as saying (see Exhibit 18) was a fair reflection of what
Ms Zahner said when she was asked for specific responses to particular issues raised with her, Ms Harwood went
on to say that during the course of the conversation Ms Zahner "wasn't really upset or anything like that"
although she was obviously not happy with the altercation that occurred with Mr Gashi (Transcript 4-59).
Towards the end of the interview she (Harwood) made it clear to Ms Zahner "that obviously once it's a formal
complaint it is a formal complaint and we would handle that accordingly. She made light of it almost, like she
didn't want to get anyone in trouble, she didn't want it to be - as it says, like, you know, formal. She wanted just
to see how it went rather than, you know, like for instance, you know she didn't want to get Omar fired. In fact,
she said that outright." (Transcript 4-59). Ms Harwood said although she did not record that comment she had a
recollection of Ms Zahner saying that because "at the end of the meeting I was, I guess, happy with that outcome.
I thought her concerns had been heard and that she was happy with the outcome." (Transcript 4-59 to 60).
[91]
Some 20 minutes or so after the meeting with Ms Zahner, Mr Byrnes approached Ms Harwood on the floor. He
was upset and quite aggressive. Following the incident Ms Harwood made a note (Exhibit 35), as follows:
"I was working on the trading floor and was walking towards kitchenware when Scott Byrnes the cleaner
approached me and said, 'Do you want to speak to me?', I said no and kept walking, he then repeated the
question again. I said if I wanted to speak to you Scott I would have spoken to you, why do you ask? He then
said Janine had told him to come see me because I wanted to talk to him. I said I did not and im (sic) not
sure why she had told him that. He then said Janine was very upset and was in tears and had left the store to
go home. He then started to comment on the conversation I had just had with Janine. I told him as I had
said to Janine the conversation I have had with her is confidential and wont be discussing it with him or
anyone else. He said Janine was scared of Omar and Troy was covering it up, and she had been to Troy
many times. He said Troy had done nothing about it. He then made some serious accusations against Troy
and Omar, so I advised him this was not the best course of action, if he had an official complaint to make he
could make one, but he shouldn't be discussing these issues on the trading floor in an unprofessional way.
He was very agitated and upset and had been from the moment he approached me. He said Janine wasn't
going to get heard or helped because Troy would protect Omar. I said to him Scott you need to make an
official complaint if that's what you want to do, but I won't listen to this anymore on the selling floor. He
said he didn't mind being the whistle blower and losing his job if that's what it takes. He then made serious
accusations about Omar being Troy's drug dealer, so I stopped the conversation immediately. I told him that
is a very serious accusation to be throwing around and he needs to stop.
I then went and made Anita aware of the conversation.".
[92]
Under cross-examination Ms Harwood said the purpose of the meeting with Ms Zahner, from her perspective,
was to gather facts about what had happened on Sunday 3 October 2010. The first she heard of any allegation
that Mr Gashi was Mr Nunn's drug dealer was when Mr Byrnes approached her shortly after the meeting with
Ms Zahner. As a result of Mr Byrnes' comments she went to see Ms Dunn who, she believed, asked Mr Larsen
to become involved.
[93]
Ms Harwood also said when she asked Ms Zahner to give her examples of problems she had previously
experienced with Mr Gashi every example she gave related to somebody else. As such, she expressed the view
to Ms Zahner that it was her opportunity to give whatever example she liked. Ms Zahner asked "how many
examples would you like?" and Ms Harwood responded by saying it was not about what she would like, it was
about whatever Ms Zahner wanted to tell her. Ms Zahner commented that she could give "heaps of examples".
After she provided some examples, Ms Harwood did not prompt her to provide other examples because that was
sufficient for the purposes of the meeting (Transcript 4-65).
[94]
Ms Harwood agreed that comments from Ms Zahner to the effect she felt sick coming to work, that she knew
what Mr Gashi was capable of outside work and that she felt threatened by him, were pretty serious feelings to
have about a co-worker and was something that should be gotten to the bottom of. However, notwithstanding
that concession, Ms Harwood did not think it was inappropriate for her to suggest a meeting between Ms Zahner
and Mr Gashi as one of the options for her to consider. This was because Ms Zahner had said she did not think it
was serious and she was willing to sort it out. Further, she thought Ms Zahner was expressing how she felt about
the Sunday incident on the basis this was the first time she was talking to someone about it "so she was
expressing how she felt about that incident" (Transcript 4-66).
[95]
Finally, in re-examination Ms Harwood confirmed that towards the end of the meeting with Ms Zahner she
(Harwood) asked her "So, what would you like us to do with the information you have given us today?" to which
Ms Zahner responded "Well, I just thought we could sort it out. I didn't know it was serious.".
[96]
Mr Stefan Larsen said that he was the Regional Human Resources Manager for DJs at the relevant time. In this
role he was asked by the management of the Robina store to investigate various matters raised by Ms Zahner and
her partner, Mr Byrnes.
18
[97]
On 6 October 2010 he contacted Ms Zahner by telephone and took a statement from her, in the form of questions
and her responses (Exhibit 6) (a summary of the contents of this Record of Interview is recorded at paragraph
[22] (above)). Mr Larsen said that as part of his investigation he spoke to a number of other employees of DJs,
either in face-to-face interviews or over the telephone. The persons he spoke to, the date(s), and a broad outline
of what they told him, is recorded below:
(a) Mr Troy Nunn - 7 October 2010 (Exhibit 23) - see summary of interview at [70] above.
(b) Mr Atilla Berantai - 14 October 2010 (Exhibit 24). Mr Berantai confirmed that Ms Zahner had
complained to him on Sunday 3 October 2010 that Mr Gashi had asked her if she could take a telephone
call and later hung up on the customer after the customer indicated they were already being attended to,
saying "Yes, that was me". Mr Berantai was also recorded as having said that Ms Zahner indicated she
had a few other issues with Mr Gashi but did not wish to elaborate. He told her that if she did have
issues then she would need to document them. He emailed Mr Nunn about this conversation and also
sent a copy to Ms Dunn because Ms Zahner said she would speak to her (Dunn) about the issues as
well.
On Tuesday 5 October 2010 he was involved in a training session with Ms Dunn. Ms Zahner came to
the door and appeared to be happy and smiling. She asked Ms Dunn if she could meet with her when
she had a second, which Ms Dunn agreed to do.
In response to follow-up questions on 4 November 2010, Mr Berantai is recorded as having told Mr
Larsen that Ms Zahner did not tell him, during the course of their conversation on Sunday 3 October
2010, that she had raised issues with Mr Nunn on many occasions previously. However, Mr Berantai
said he was approached by Mr Byrnes on the morning of 5 October 2010 who started to discuss the
issues which Ms Zahner had, saying she had raised them with Mr Nunn on many occasions but he had
not done anything about them.
(c) Mr Scott Byrnes (unknown date) (Exhibit 25). Mr Byrnes is recorded as having made the following
comments:
•
Janine vomits every day before work because she is so scared of Omar;
•
Omar has Troy in a compromising situation as he is selling him drugs. That's why nothing has
been done;
•
Janine has complained ten times to Troy. When she tries to go to Anita Troy basically stops her;
•
He had not seen Mr Gashi deal drugs;
•
He heard Mr Gashi telling the customer "Titans suck! The Gold Coast sucks!". He said "I was
just coming out of the lift when I heard this so Janine would not have seen me.";
•
"It's common knowledge in the store. I think that he deals to Troy. Henry Phu has also smelt it
and seen it on him. Also Isobelle Fawkes and Kylie Webb have seen it.";
•
"I understand that the store receives multiple complaints about Omar but Troy rips them all up.".
(d) Ms Rae Anne Mclachlan - 6 October 2010 (Exhibit 26). Ms Mclachlan is recorded as having told Mr
Larsen that she found Mr Gashi very arrogant to the point that he swore at her. In the presence of
customers he had said to her "… where's the fucking tickets?" in relation to sales she might have made
for French Connection. She had not made any complaints to Mr Nunn about Mr Gashi "because I am
not that type of person.".
(e)
Ms Jen Butler - 6 October 2010 (Exhibit 27). Ms Butler is recorded as having told Mr Larsen that she
found Mr Gashi to be abrasive, rather than aggressive. She did not remember him swearing but
recounted an incident after he started work at French Connection when she took some sales tags back to
his counter. His response was "Well how come I have security tags but no tickets?" which was said in a
"snarly and non-appreciative manner.".
(f)
Ms Nicole Wood - 6 October 2010 (Exhibit 28). Ms Wood is recorded as having told Mr Larsen that
she had had a couple of confrontations with Mr Gashi in the past after he made a number of comments
about difficulty she had hearing out of one ear as a result of an accident when she was younger. Some
days he made comments along the lines that she was dumb but on other days he was friendly. When he
first started at DJs he had cereal and sugar in his shopping bag and she made some comment in relation
to the shopping. He then asked her if he could head butt her. She was surprised at this remark but
thought he was trying to act as a tough guy. Since Mr Gashi went to French Connection he kept telling
everyone he was FC and did not need to help. A few days earlier he was complaining that he had to
help DJs' staff.
19
Ms Wood is also recorded as having told Mr Larsen that she was present on 3 October 2010 when Omar
and Janine had their confrontation and it was hard to see who was in the wrong because the incident
only lasted three to four seconds. She then recounted a version of events which was very similar to that
given by Ms Zahner during the course of her evidence, culminating in Mr Gashi slamming the phone
down.
Ms Wood is also recorded as having heard Mr Gashi "mumble" swear words on the floor "a little bit if
he is angry because he thinks that he is doing our job". In response to a question as to whether she had
seen him be aggressive towards anyone Ms Wood is recorded as having responded to the effect that Mr
Gashi was "verbal and pushes the boundaries. He says things to get a reaction.". She had reported this
to Mr Nunn on one occasion and since then Mr Gashi had been fine towards her. Ms Wood is also
recorded as having told Mr Larsen "Omar said to me 'if she (Ms Zahner) gets me in trouble I could tell
something that could get her fired.' I asked what, but he would not tell me. I think he was trying to
protect himself. I told Janine this. Her reaction was that she had no idea what this could be. She got a
little more upset and angry about it.".
(g) Ms Kylie Webb - 6 October 2010 (Exhibit 29). Ms Webb is recorded as having told Mr Larsen that she
was of the view that Mr Gashi was very opinionated and started bullying Nicole (Wood) first. He
would make fun of the way she answered or the way she spoke. "It started with Nicole, then me and
finally Janine.". Mr Gashi was "Just rude". For example, when she needed to leave the register, and
refusing to answer her if she asked him when he was going. He often called her "Genius", sarcastically,
towards the end of his employment. He did not have any customer service skills, saying he did not get
paid enough to care.
Ms Webb is also recorded as having said she did not raise any of her concerns with management
"because I had heard that other people had mentioned this to Troy and nothing occurred.". She had
heard Mr Gashi swear on the floor saying things like "I am not fucking doing that, I don't get paid
enough" if she asked him to do something. She had not said anything to Mr Nunn about this "as enough
people would have mentioned this to him. I did not want to burden him as everyone was going to him.
We were told that we were too sensitive when anyone speaks to him. I don't think that he understood
the seriousness. He thought that it was just banter. But everyday it would be harassment.".
Ms Webb is also recorded as having witnessed Mr Gashi, in about February/March 2010, bend down
behind the counter and pull out a plastic satchel of what he said was drugs, left over from the weekend.
She had heard rumours about drugs in the workplace, and that Mr Gashi was bringing them into work
and dealing, but had not seen anything herself.
(h) Isobelle Fawkes - 7 October 2010 (Exhibit 30). Ms Fawkes is recorded as having told Mr Larsen that
Mr Gashi was not exceptionally rude and she had never had any problems with him personally, although
she knew that Kylie Webb had a couple of run-ins with him. She had also heard him speak to other
employees in a tone that they may have taken more seriously.
Ms Fawkes is also recorded as having said that she had never heard anything about Mr Gashi being a
drug dealer and he had never tried to sell drugs to her. On one occasion she saw him, from a distance of
about five metres, with a little bag with white looking powder. However, she could not be sure it was
drugs nor that it was deliberate.
Ms Fawkes is also recorded as having said she heard Ms Zahner and Mr Nunn having a conversation in
the reserves about Mr Gashi not doing as much work as the rest of the staff. Mr Nunn's response to Ms
Zahner was that everyone, including Mr Gashi, was doing the work they had been allocated and it was
his (Nunn’s) role to decide who did what.
Ms Fawkes also told Mr Larsen that she overheard Ms Zahner, several months before, telling Mr Gashi
that he could pay her back with some drugs when she agreed to cover one of his shifts. "I do not know
if she was joking but that is what she said.".
(i) Mr Dan Shelley (a logistics assistant working in the dock area) - 7 October 2010 (Exhibit 31). Mr
Shelley is recorded as having informed Mr Larsen that he had never witnessed Mr Gashi acting in a way
which could be classed as bullying and that he had never seen him use drugs or bring drugs into the
store.
(j) Mr Caleb Gardner (a logistics assistant working in the dock area) - 7 October 2010 (Exhibit 32). Mr
Gardner is recorded as having told Mr Larsen that he had seen Mr Gashi talk to other employees in a
way "that was not good". For example he had witnessed Mr Gashi speak to Ms Zahner a few months
before when Mr Gashi sounded like he was just joking around but she (Zahner) may have taken this in a
bad way. However, he could not remember what Mr Gashi had said.
20
Mr Gardner is also recorded as having said he heard Mr Gashi swear a fair bit on the floor, telling other
employees to "fuck off" in a nasty way. However, he had not heard him swear to customers.
(k) Mr Henry Phu - 6 October 2010 (Exhibit 33). Mr Phu is recorded as having told Mr Larsen he had
never witnessed Mr Gashi acting in a way that could be classed as bullying and he had never seen him
use drugs or bring drugs into the store.
[98]
Mr Larsen said that as a result of his investigations on and around 6/7 October 2010 it appeared that there were
genuine concerns in relation to Mr Gashi's behaviour, which was not the type of behaviour you would expect to
see within a DJs' store. As such, French Connection was asked to move him. In relation to the allegations about
drugs in the workplace, Mr Larsen said that at least one other person told him they assumed Mr Gashi had drugs
in his possession. However no one was able to confirm that he (Gashi) told them he was dealing drugs to Mr
Nunn.
[99]
Under cross-examination Mr Larsen agreed he had asked Mr Nunn, on 4 November 2010, why he had
participated in the meeting involving Ms Zahner, Ms Harwood and himself on 5 October 2010 after Ms Zahner
made the comment to him (Nunn) that Mr Gashi was telling everyone that he was Nunn's drug dealer. Mr
Larsen opined, in his capacity as a HR Manager for DJs, that Mr Nunn should not have participated in the
meeting. In hindsight, he said, Mr Nunn also agreed.
[100] Mr Larsen also said as part of the DJs' "code of ethics conduct document" the first stage of dealing with claims
of bullying, harassment and the like required the person who had the concern to be provided with the opportunity
to ask the other individual to stop the behaviour complained of. He also said that in the context of the events Ms
Zahner complained about on Sunday 3 October 2010, and expanded upon in her meeting with Ms Harwood and
Mr Nunn on 5 October 2010, it was appropriate for people, sometimes, to meet and resolve their conflicts but
"sometimes it isn't" (Transcript 4-23). It would also not be unreasonable for the manager (Mr Nunn) to try to
resolve the conflict locally. However, in the circumstances of this case, Mr Nunn should not have been involved
in any three-way meeting from the time he was alleged to be complicit in a drug dealing relationship (Transcript
4-23).
[101] Mr Larsen also agreed that if a department manager, such as Mr Nunn, received any complaint from a staff
member to the effect that another staff member was acting aggressively, swearing, refusing to assist co-workers,
or that a worker had drugs present in the workplace, then those matters should be immediately escalated to
Human Resources, whether it be to a HR advisor or to himself.
[102] Ms Nicole Pioch is employed as an Injury Management Specialist (IMS) by DJs. Her role is to assist employees
who are injured in the workplace with their rehabilitation and return to work. In the course of handling Ms
Zahner's claim she also spoke to WorkCover and to Mr Larsen about his investigations.
[103] Ms Pioch said she rang Ms Zahner's mobile on 7 October 2010 and left a message to the effect that it was her
role as an IMS to liaise with WorkCover and any injured staff member and that, in this capacity, she wanted to
check how Ms Zahner was doing. She also asked Ms Zahner to return her call. She left a similar message on the
following day.
[104] At roughly 2.30 p.m. on 8 October 2010 Ms Zahner returned her calls. In the course of this conversation she
mentioned to Ms Zahner that she had been advised that Mr Gashi would no longer be working at DJs and asked
Ms Zahner whether she would be happy to return to work at Robina or another store. Ms Zahner asked her
"what was going on" with Mr Nunn "he was one of the main ones in all this". Ms Pioch said Ms Zahner told her
that she would not be returning to work until she had heard from Mr Larsen about what was happening with Mr
Nunn. Ms Pioch told Ms Zahner she would ensure that Mr Larsen got in touch with her regarding the
investigation.
[105] Ms Pioch's notes record a subsequent conversation with Ms Zahner on 18 November 2010 in which she (Zahner)
raised a number of complaints about how DJs' Management handled her issues and her problems with Mr Nunn
and Mr Gashi. However, since this matter is unrelated to Ms Zahner's actual decompensation, nor any of the
events which immediately followed that event, I do not propose to refer to it any further than I have.
Findings and Conclusions
Impressions of the witnesses
[106] This is a case in which the credibility of individual witnesses is critical to determination of the true facts. As
such, I propose to record my impressions of the individual witnesses, as follows:
21
(a) Ms Harwood - I was impressed with Ms Harwood as a witness and have accepted all of her evidence as
being both truthful and reliable. This includes her written accounts of the meetings/discussions she
participated in with Mr Gashi, Ms Zahner and Mr Byrnes, respectively, on 5 October 2010.
(b) Mr Larsen - Mr Larsen struck me as a witness of credit who, in my opinion, gave an honest account of
the investigations he had conducted (including his written record of each conversation he held - see
Exhibits 23 to 33, inclusive), as well as the conclusions he came to (see Exhibit 9). While somewhat
qualified in his responses under cross-examination he was, nonetheless, prepared to proffer the view, as
a Human Resources professional, that it was inappropriate for Mr Nunn to have participated in the
meetings on 5 October 2010, chaired by Ms Harwood, after Ms Zahner mentioned that Mr Gashi was
telling everyone that he was Mr Nunn's drug dealer.
(c) Mr Nunn - because of the evidence given by Ms Zahner and Ms Bradley, respectively, about the nature
of their discussions with Mr Nunn, I paid particular attention to Mr Nunn's overall demeanour and
responses to matters raised with him during his time in the witness box. As a result of my observations
and consideration of his evidence I have determined Mr Nunn to be a witness of credit who gave
truthful answers to the questions asked of him. As such (for reasons further advanced below), I accept
his evidence ahead of that of Ms Zahner and Ms Bradley, respectively, where there is a conflict between
the versions proffered by them and the version proffered by him.
(d) Ms Zahner - I did not find Ms Zahner to be a credible witness. Her version of events was inconsistent in
many areas and she was also prepared to challenge the bona fides of Ms Harwood who she accused of
falsifying comments she (Zahner) made during the course of the meeting on 5 October 2010 (see
paragraph [28](d), (e), (f) and (g) and transcript 2-34 to 35). At paragraph [28](h) above, she claimed
that Ms Harwood told her "at the beginning of the meeting" that she wanted the issue between her and
Mr Gashi sorted out quietly without anybody knowing. This was just one example of a number of clear
untruths. Mr Harwood was on a fact-finding mission in relation to the events of 3 October 2010 about
which Ms Zahner had complained to Mr Berantai and, later, Mr Nunn. Not only did Ms Harwood not
know enough about what had happened to have suggested to Ms Zahner at the start of the meeting that
she wanted the whole thing fixed quickly and quietly without anybody knowing, she also did not strike
me as the sort of person who would have tried to push matters under the carpet. Ms Zahner's claim that
she was pressured by Ms Harwood from the outset was a desperate attempt to make the meeting look
like something it clearly was not.
Ms Zahner was also inconsistent in respect of the time when Mr Gashi's (alleged) behaviour towards her
became cause for concern. At one point she said it was in May 2010, after the drugs under the counter
incident (see paragraph [25](e), (k) and (r)). Later she said it was in July 2010 (see paragraph [27]).
Elsewhere she confirmed that she told Ms Harwood and Mr Nunn that the problems started about six
weeks previously, when Mr Gashi found out he was to move over to French Connection.
It is also apparent that Ms Zahner was inconsistent in the version of some events she gave evidence
about in the Commission compared to the version(s) she presented to Dr Chau and Dr Byth during the
course of their respective consultations with her. An example of an inconsistent version of events is her
(alleged) encounter with Mr Gashi at the bowling alley. At paragraph [24](h) and (i) she said Mr
Byrnes took herself and her daughters to the bowling alley on a Thursday and she first saw Mr Gashi at
the bowling alley when she turned around and saw him standing behind her. She also said that after
they left the bowling alley they saw Mr Gashi in his car near Mr Byrnes' unit. However, she told Dr
Byth that Mr Gashi followed her and her daughters to a bowling alley. There was no mention of the
presence of Mr Byrnes, nor Mr Gashi (allegedly) sitting in his car outside Mr Byrnes' unit (see
paragraphs 2.7 and 3.4 of Exhibit 15) as she travelled home afterwards. (Importantly, Mr Byrnes did
not give any evidence in support of either version of events.)
She also told Dr Byth (see paragraphs 2.10 and 2.11 of Exhibit 15) that she had reported to Mr Nunn
that Mr Gashi had offered to sell her and Kylie Webb amphetamines and that she had told Ms Harwood
and Mr Nunn, on 5 October 2010, that Mr Gashi was selling drugs at work and they tried to intimidate
her into not reporting the drug dealing. This was very different to the evidence she gave in the
Commission. It was also untrue.
Further, Ms Zahner withheld critical information from both Dr Chau and Dr Byth in relation to the
separation from her husband, after a trial reconciliation, in June 2010 and the termination of her
pregnancy in late August 2010. (In this regard she was also untruthful to Mr Byrnes, telling him she
had suffered a miscarriage.)
(e) Mr Byrnes - I did not find Mr Byrnes to be a witness of credit either. For example, he denied telling Mr
Larsen that Ms Zahner had lost twins through a miscarriage which had been caused by stress at work
when he clearly did make this comment. Overall, I gained the impression that Mr Byrnes' evidence was
22
deliberately tailored to try to bolster the version of events proffered by Ms Zahner where she had
(allegedly) told him about events at work. Even then, there were some inconsistencies between their
respective evidence. For example, at paragraph [33](b) and (c) Mr Byrnes said that he was the one to
inform Ms Zahner that Mr Gashi had said (to Mr Phu) that it was acceptable to smack a woman around
if he (Gashi) felt they had done him wrong. By contrast, Ms Zahner said that Mr Gashi made this point
known to her "from day one" (although she later said it was in August 2010).
An example of Mr Byrnes’ attempts to bolster Ms Zahner’s case was when he claimed that he
complained to Mr Berantia and "a few people" before 3 October 2010 about Ms Zahner's treatment (by
Mr Gashi and Mr Nunn). From my observation of him when he made this claim I have concluded it
was pure fiction.
(f)
Mr Phu - like Mr Byrnes before him, Mr Phu's evidence was designed to bolster the evidence of Ms
Zahner by repeating things that she had allegedly said to him concerning both Mr Nunn and Mr Gashi.
However, as was the case with Mr Byrnes, the version of events proffered by Mr Phu did not accord
with that recounted by Ms Zahner. For example, in her evidence Ms Zahner said she had experienced
problems with Mr Gashi after she had (allegedly) observed him with drugs in May 2010. However, Mr
Phu said (at paragraph [41]) that Ms Zahner's problems with Mr Gashi started in around
August/September 2010.
Further, Mr Phu alleged that Ms Zahner told him she was aware Mr Gashi was selling drugs to Mr
Nunn. How Ms Zahner allegedly came by this information was not explained. She did not suggest
during her evidence that Mr Gashi had told her (although she did say Mr Nunn said words to the effect
“now I know where I can get some from”). If it was information provided by Mr Phu then that could
not have been until September 2010 when Mr Gashi (allegedly) told him (Phu) that a bag he put into a
cupboard contained marijuana for Mr Nunn.
(g) Ms Bradley - Ms Bradley's evidence appeared to be solely designed to discredit Mr Nunn, whom she
had a very poor opinion of. After considering her responses to questions about when it was that Mr
Nunn (allegedly) told her that he used cocaine (see paragraph [50]) and observing her overall
demeanour during her time in the witness box, I have decided that Ms Bradley was (also) not a witness
of credit. As such, I have rejected her evidence about Mr Nunn allegedly telling her that he used
cocaine.
Interestingly, however, Ms Bradley said that in the approximate four month period she worked in the
menswear department with Mr Gashi she did not witness him treat any member of staff in a manner
which she would consider to be bullying, although she did hear him put down one particular staff
member of a number of occasions.
The elements of s.32 of the Act
[107] Q-COMP concedes that Ms Zahner was a worker within the meaning of the Act and that she suffered a
psychological or psychiatric injury/disorder. It also appears to accept that her disorder arose out of, or in the
course of, her employment.
[108] However, Q-COMP does not concede that Ms Zahner’s employment was a significant contributing factor to her
injury.
The nature and cause of Ms Zahner’s injury
[109] In her application for Workers’ Compensation, lodged on 7 October 2010, Ms Zahner described her injury as
“stress” which happened at 1:15pm on 3 October 2010, with the injury being reported to Mr Berantai that same
day. However, in a Claim Information Summary for Workers, in relation to psychological and psychiatric
injuries (Exhibit 2), completed on 23 October 2010, Ms Zahner described the three factors as being most
causative of her injury as:
1.
2.
3.
Drugs in the workplace;
No action from management;
Bullying + intimidation from Omar (Gashi).
[110] As the case unfolded it became apparent that Ms Zahner was arguing that factors 1, 3 and 2 (in that order) were
all relevant to the period from (at least) May 2010 up to and including 3 October 2010, while factors 2 and 3
were also relevant to the events of 4 and 5 October 2010.
[111] However, one of the difficulties in identifying the true cause of Ms Zahner’s injury, and the contribution which
events in the workplace might have had to its development, is that quite a number of the events and incidents
23
which she recounted to Doctors Chau and Byth, respectively, occurred after 7 October 2010, the date Dr Tiller
certified her as being unfit for work because of work related stress.
[112] In that respect, it is clear that Ms Zahner provided an enhanced account of what had allegedly occurred during
her employment to both doctors, especially Dr Byth. Her description of events (see for example paragraph [61]
at 2.7 and 2.11), which happened both before and after 5 October 2010, undoubtedly contributed to Dr Byth
making the diagnosis he did – including the contributing factors.
[113] In addition, it is worthwhile noting that Dr Byth examined Ms Zahner on 26 August 2011 whereas Dr Chau saw
her on 15 December 2010. Further, the account given by Ms Zahner to Dr Chau contained less enhancement
than the later version she gave to Dr Byth. As such, I regard the opinion of Dr Chau about the factors which led
to Ms Zahner’s decompensation as being more reliable than that of Dr Byth.
[114] In the circumstances I propose to consider the events in the workplace prior to 3 October 2010 and the
contribution, if any, which those events had on the development of Ms Zahner’s psychological or psychiatric
condition before considering the contribution (if any) of the events which occurred between 3 and 7 October
2010, inclusive.
Drugs in the workplace, bullying and intimidating behaviour and complaints to Mr Nunn before 3 October 2010
[115] Based upon my consideration of the evidence about the three primary factors which Ms Zahner identified as
being causative of her injury, the following points emerge:
•
•
•
•
•
•
•
•
•
•
•
Ms Zahner visited Dr Tiller during the relevant period on 29 July 2010, 9 and 26 August 2010, and 8
September 2010. Nothing in his notes suggest that Ms Zahner raised anything about any difficulties she was
experiencing in the workplace or in relation to her employment during these visits;
Based on the records of interview conducted by Mr Larsen, none of the other employees who worked in the
menswear department in DJs made any complaint to Mr Nunn (or anyone else) about Mr Gashi’s treatment
of them with the exception of Ms Wood. Ms Wood is recorded as having told Mr Larsen that after she
complained to Mr Nunn about Mr Gashi’s behaviour towards her, his behaviour improved and after that he
was “fine”;
The only two people who heard Mr Gashi swear in the workplace were Ms Mclachlan (see paragraph
[97](d)) and Ms Webb (see paragraph [97](g)). Ms Mclachlan’s experience seemed to relate to a single
incident after Mr Gashi moved to French Connection, while Ms Webb’s experience coincided with an
example cited by Ms Zahner where Mr Gashi is (alleged) to have said “I am not fucking doing that, I don’t
get paid enough.”;
No employee made any report to Mr Nunn (or any other member of Management) about Mr Gashi allegedly
bringing drugs into the workplace or dealing drugs to Mr Nunn or any other employee;
In her interview with Ms Harwood and Mr Nunn on 5 October 2010, Ms Zahner told them she had been
having “a serious problem” with Mr Gashi for around six weeks. When asked to provide details of the
specific instances she replied that she could give “heaps of examples” and then mentioned that he had told
her “fuck off I’m not helping you” after she asked him to help her. She did not mention any other examples
although invited to do so on several occasions;
When asked to describe her working relationship with Mr Gashi prior to the last six weeks Ms Zahner
responded by saying that while they were not friends out of work “…we got on really well…sometimes we
had a personal dig at each other but in a joking manner. That’s what our department is like…”. This
response does not suggest that any difficulties she might have had with Mr Gashi were long-standing;
When asked whether she had reported Mr Gashi’s behaviour to anyone, she responded by stating she told
Mr Nunn about the stock work issue and the incident on Sunday 3 October 2010. In the scheme of things I
regard this comment, in the sense of its very limited scope, as particularly telling;
Mr Nunn said (and I accept) that, the only complaint Ms Zahner made to him about Mr Gashi was that he
was not doing enough work. This was when everyone else was doing stock work and Mr Gashi was
working on the counter (see paragraph [70](g)). Interestingly, while this (single) “complaint’ was overheard
by Ms Fawkes, no other employee reported hearing Ms Zahner make any similar “complaints”;
Ms Zahner’s allegations about Mr Gashi’s behaviour towards her appear to have grown in number and
severity between 5 October 2010, when she spoke to Ms Harwood and Mr Nunn, and her written statement
dated 13 March 2011;
Of particular relevance in the statement of 13 March 2011 is her claim (recorded at paragraph [25](n) above)
to the effect that she complained to Mr Nunn in August/September 2010 about Mr Gashi’s behaviour and
told Mr Nunn that his (Gashi’s) behaviour was making her not want to come to work; and
Neither Dr Tiller nor Dr Chau seem to attribute any event prior to 3 October 2010 as contributing to Ms
Zahner’s decompensation on or around 7 October 2010.
24
[116] On the last point, Dr Tiller said (see paragraph [56]) that Ms Zahner reported to him on 7 October 2010 that she
had blown the whistle on co-workers who were involved with drugs at work and that she had received pressure
from management not to proceed, or remain silent, on the topic after she reported it.
[117] Dr Chau reported (see paragraph [51](a)) that the first time Ms Zahner felt harassed and/or threatened by Mr
Gashi was on 3 October 2010, although she also reported that Mr Zahner told her that she had been “putting up
with a lot” for months prior to this date. Later (see paragraph [55]) Dr Chau opined, based upon the history she
had taken from Ms Zahner as well as the comments recorded in Dr Tiller’s notes on 7 October 2010, that Dr
Tiller’s notes reflected the operative stressors which caused Ms Zahner to leave work. As noted elsewhere, Dr
Tiller’s notes recorded the comment: “whistle blew at work co worker and manager taking drugs – pressure
from Hr and co workers.”.
[118] Importantly, what are said by both Dr Tiller and Dr Chau to be the operative stressors do not include any
reference to the alleged bullying and intimidating treatment by Mr Gashi.
[119] After carefully considering all of the evidence given in these proceedings, I have concluded that Ms Zahner was
not subjected to bullying and intimidating behaviour by Mr Gashi prior to 3 October 2010. However, that is not
to say that he might not have used the “f” word on a number of occasions, including when he told her he would
not help her when she requested his assistance. I also conclude, based upon the medical evidence (see
paragraphs [56] and [117]), that Mr Gashi’s behaviour toward her prior to 3 October 2010 was not a factor in Ms
Zahner’s decompensation.
[120] I have also concluded that Ms Zahner did not inform Mr Nunn in May 2010, or at any other time (including on
4 or 5 October 2010), that Mr Gashi had drugs in the workplace. Equally, I do not accept that Mr Nunn
responded with words to the effect "That's good to know, now I know who to get it off.".
[121] I also reject Ms Zahner’s claim that she told Mr Nunn, in August or September 2010, that Mr Gashi’s behaviour
towards her was making her not want to come to work. A comment along those lines was first made during her
meeting with Ms Harwood and Mr Nunn on 5 October 2010.
[122] In addition, I have concluded that Ms Zahner did not raise any complaints about Mr Gashi's treatment of her,
which could be regarded as formal, with Mr Nunn or any other Manager prior to 3 October 2010. The only
complaint which I am satisfied that Ms Zahner made to Mr Nunn was in relation to Mr Gashi being assigned to
work on the counter when she (and others) were assigned to stock work. This complaint, confirmed by Mr Nunn
and apparently overheard by Ms Fawkes, appears to have been made in August 2010. Ms Zahner might have
made some other comments to Mr Nunn about the work she might have been asked to perform compared to that
assigned to Mr Gashi, however I would not regard any comments of that nature as constituting a complaint per
se. Rather, I would categorise them as a general "whinge" by an employee about their duties to their supervisor,
which someone in Mr Nunn's position would have had to deal with as part of their everyday duties.
[123] In summary, nothing which occurred in the workplace prior to 3 October 2010 contributed to Ms Zahner’s
decompensation on or around 7 October 2010.
"Workplace-related" events between 3 and 7 October 2010, inclusive.
[124] Around lunch time on Sunday 3 October 2010 Ms Zahner had an encounter with Mr Gashi, the details of which
are recorded at paragraph [9] (above). Shortly afterwards she complained to Mr Berantai about Mr Gashi's
behaviour. He requested that she make her concerns known to her immediate supervisor, Mr Nunn. On the
following day, which was her day off, Ms Zahner went into work and spoke to Mr Nunn about the incident the
previous day. He asked her to formalise her complaint in writing if she wished to take the matter further.
[125] The events of 5 October 2010 were the subject of considerable evidence, which I do not intend to repeat. Rather,
I propose to record my findings in relation to the events of that day based upon my overall assessment of the
evidence, as well as my assessment of the respective witnesses, as follows:
•
•
•
•
Mr Nunn did not physically "grab" Ms Zahner and take her into his office as she alleged at paragraph [13]
(above). Instead he either called her into, or invited her into, the vacant office near Ms Dunn's office;
Mr Nunn enquired of Ms Zahner whether she had prepared her letter of complaint about Mr Gashi. In
response she replied that she had difficulties printing it out but still wished to pursue the matter;
In accordance with DJs' policies about dealing with complaints of bullying or harassing behaviour, Mr Nunn
canvassed with Ms Zahner the possibility of conciliation / mediation or talking to Mr Gashi directly;
In the course of the conversation Ms Zahner told Mr Nunn that Mr Gashi had threatened her after she had
complained about his behaviour on 3 October 2010. When Mr Nunn questioned her further about this
matter, Ms Zahner changed her story and said that Mr Gashi had said something to Ms Wood;
25
•
•
•
•
•
•
•
•
•
•
•
•
•
•
•
In the course of outlining her issues concerning Mr Gashi, Ms Zahner also told Mr Nunn "that he should
know" that Mr Gashi was telling certain people in the workplace that he had Mr Nunn wrapped around his
little finger because he was his (Nunn's) drug dealer;
Mr Nunn asked Ms Zahner who was making those comments but she declined to give names. He then
advised her that she should not be listening to, or feeding, gossip;
After Ms Zahner mentioned Mr Gashi was making comments about him, Mr Nunn decided that he should
not question Ms Zahner about her complaint of bullying and intimidating behaviour by Mr Gashi but that he
should, instead, invite a more senior manager, Ms Harwood, to interview Ms Zahner. However, he also
decided to attend this interview as an observer;
In the course of the interview Ms Harwood provided ample opportunity to Ms Zahner to raise any concerns
or complaints she might have had about Mr Gashi or anything else that had happened in the workplace,
asking her on several occasions whether there was anything else that she might wish to raise;
When asked this question on the second occasion, Ms Zahner responded by stating that there wasn't, after
which she expressed the desire "I just want to get on with everyone at work, having everyone respect each
other, that's all.";
Importantly, as noted in paragraph [115], when asked if she had told anyone previously about Mr Gashi's
behaviour, Ms Zahner mentioned that she had told Mr Nunn about (only) two matters - being the stock work
issue and the incident on the previous Sunday.
Towards the end of the interview Ms Harwood asked Ms Zahner what she would like DJs to do with the
information she had provided. Ms Zahner responded, in words to the effect, "Well, I just thought we could
sort it out. I didn't know it was serious.";
In response to a question from Ms Harwood about whether she would be happy to meet with Mr Gashi to try
to resolve the issues between themselves, if that could be arranged, Ms Zahner replied that she would be
prepared to meet, she would see where it went from there and if it didn't improve she would formalise her
complaint;
After the interview concluded Ms Zahner went back to the menswear department. Shortly after arriving
there she told Mr Nunn that she "could not handle this" and that "I don't come to work to deal with this
shit.";
Mr Nunn took Ms Zahner in the lift to the office downstairs and offered her the opportunity to have a break
from work or to lie down. She indicated that she would like to go for a coffee. She collected her bag and
left the room, he thought, to get some coffee;
A short time later a security officer informed Mr Nunn that Ms Zahner was outside in the car park, crying.
He went to the car park but could not see her. As he came back into the store Mr Nunn was informed by the
Loss Prevention Officer that Mr Byrnes had asked him to tell Mr Nunn that Ms Zahner had gone home
crying;
Mr Nunn tried to contact Ms Zahner several times throughout the afternoon and finally spoke to her at about
6:00pm. She explained that she had vomited in the car park and had decided to go home;
Mr Nunn informed her that he had spoken to Mr Gashi, who was happy to sit down and have a discussion
with her about her issues;
About 20 minutes after her meeting with Ms Zahner, Ms Harwood was approached by Mr Byrnes who
started to comment, quite aggressively, about the conversation she had just had with Ms Zahner. In the
course of his confrontation with her, Mr Byrnes told Ms Harwood that Ms Zahner was scared of Mr Gashi,
that she had complained to Mr Nunn many times about it, that Mr Nunn had done nothing about it, that Ms
Zahner was not going to get heard or helped because Mr Nunn would protect Mr Gashi, and that this was all
because Mr Gashi was Mr Nunn's drug dealer;
Ms Harwood told Mr Byrnes that the allegation he was throwing around (on the trading floor) was very
serious and that he needed to stop. She then went and made Ms Dunn, the Store Manager, aware of the
conversation. Ms Dunn (apparently) decided to involve Mr Larsen in the matter.
[126] In reaching my decision about the way the events of 5 October 2010 occurred I have rejected the majority of Ms
Zahner's claims about the content of her discussion with Mr Nunn prior to her participation in the interview
conducted by Ms Harwood, as well as her assertions about what Ms Harwood and Mr Nunn allegedly said to her
during the course of that meeting.
[127] In particular, I reject Ms Zahner's evidence that Mr Nunn told her not to say anything about drugs to Ms
Harwood (see paragraphs [13] and [23](l)), that both Ms Harwood and Mr Nunn told her that they didn't wish
her complaint to go any further and that they wanted it handled as quickly and as quietly as possible (see
paragraphs [17] and [28](h)). In relation to the latter allegation, Ms Harwood informed me (and I accept) that
Mr Nunn did not speak during the interview.
[128] Counsel for Ms Zahner strongly criticised the decision by Mr Nunn to sit in on the interview conducted by Ms
Harwood. It was suggested that his presence, in circumstances where he had (allegedly) previously warned Ms
Zahner not to talk about Mr Gashi having drugs in the workplace, was intimidatory and inappropriate.
26
[129] In addition, both Mr Nunn and Ms Harwood were criticised for, independently, canvassing with Ms Zahner her
preparedness to meet with Mr Gashi to try to mediate her concerns. However, the problem in this submission is
that Ms Zahner expressed a preparedness to meet with Mr Gashi when Mr Nunn canvassed that possibility with
her, and she also told Ms Harwood that she didn't know it was serious and thought she could sort the issue out
with Mr Gashi (see paragraph [95]).
[130] In any event, neither Mr Nunn's participation in the meeting nor the fact that he and Ms Harwood canvassed with
Ms Zahner the possibility of her meeting with Mr Gashi to try to resolve their differences informally were
mentioned as possible "stressors". Further, neither issue found its way into any of the medical reports.
[131] In such circumstances, I concluded that neither Mr Nunn's participation in the meeting between Ms Harwood
and Ms Zahner, nor the two management representatives asking her if she prepared to meet with Mr Gashi to try
to resolve their differences, in any way contributed to her decompensation.
[132] Further, Ms Zahner's failure to raise the issue of Mr Gashi's (alleged) drug dealing in the workplace during the
meeting with Ms Harwood did not cause that issue to remain "under the table". Less than 20 minutes after the
meeting concluded Mr Byrnes raised the allegation with Ms Harwood. As noted elsewhere, Ms Harwood went
straight to Ms Dunn and spoke to her about both the drug dealing allegations and the allegations of inappropriate
behaviour by Mr Gashi. In turn, Ms Dunn contacted Mr Larsen.
[133] After being informed about Ms Zahner's complaints concerning Mr Gashi's behaviour in the workplace and Mr
Byrnes' allegation to Ms Harwood that Mr Gashi was dealing drugs to Mr Nunn, Mr Larsen commenced an
investigation into the respective allegations on 6 October 2010.
[134] During the course of that day Mr Larsen spoke, by telephone, with Ms Zahner and she provided him with
additional information to that given to Ms Harwood the previous day (see paragraph [22]). Mr Larsen also spoke
to Ms Mclachlan, Ms Butler, Ms Wood and Ms Webb.
[135] On the following day (7 October 2010) Mr Larsen spoke to Mr Nunn, Ms Fawkes, Mr Shelley and Mr Gardner.
[136] As a result of information obtained during the course of these interviews Mr Larsen decided that Mr Gashi's
behaviour towards other staff and customers was such that he should not be allowed to continue to work in any
DJs' store. As such, he contacted Mr Gashi's employer and asked them to remove him from DJs' stores.
[137] As noted previously, Ms Zahner visited Dr Tiller on 7 October 2010 and he issued her Worker's Compensation
Medical Certificate which stated that she was suffering from "work related stress, anxiety, insomnia, loss apetite
(sic)". Dr Tiller (who had an independent recollection of the consultation - see paragraph [56] (above))
recorded the reason for Ms Zahner's visit as "Whistle blew at work co worker and manager taking drugs pressure from Hr and co workers.".
Relationship between the events in the workplace and the nominated "stressors":
[138] Based upon my consideration of the evidence, Ms Zahner did not raise the issue of Mr Gashi (allegedly) having
drugs in the workplace with any member of DJs' management (including Mr Nunn) until she was questioned
about that issue by Mr Larsen during the course of his telephone interview with her on 6 October 2010.
[139] Although Ms Zahner did tell Mr Nunn, on the morning of 5 October 2010, that he "should know" (in the sense of
being informed) that Mr Gashi was telling certain staff members that he was his (Nunn's) drug dealer, the
making of that comment (by itself) did not constitute any advice to Mr Nunn that Mr Gashi actually had drugs in
the workplace. On the basis of Ms Zahner's refusal to tell him who was spreading such stories Mr Nunn was
entitled, in my view, to dismiss the "information" as an unsubstantiated (and defamatory) rumour.
[140] As such, the first indication that anyone from management had that there might have been drugs in the
workplace was when Mr Byrnes positively asserted to Ms Harwood, following her meeting with Ms Zahner, that
Mr Gashi was dealing drugs to Mr Nunn.
[141] As noted above, Ms Harwood immediately informed Ms Dunn of Mr Byrnes' allegation after which Ms Dunn
requested Mr Larsen to investigate the allegation, as well as Ms Zahner's complaints about Mr Gashi's treatment
of her.
[142] Consequently, in relation to the nominated "stressors", it could never be said that there was no action from
management concerning the issue of drugs in the workplace or being bullied or harassed by Mr Gashi. The
management action in relation to these issues was immediate, with Mr Larsen's investigation commencing less
than 24 hours after the allegations were made.
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[143] In relation to the third nominated "stressor", I concluded above (at paragraph [120]) that Ms Zahner was not
subjected to bullying and intimidating behaviour by Mr Gashi prior to 3 October 2010, subject to the caveat that
he might have made a number of inappropriate comments to her or used the "f" word on a number of occasions.
[144] Nonetheless, there is evidence to the effect that the encounter between Ms Zahner and Mr Gashi on Sunday 3
October 2010, and Mr Gashi's subsequent comment to Ms Wood that Ms Zahner made a complaint about him he
would get her sacked, did constitute bullying and/or intimidating behaviour. However, while that might have
been the case, the medical evidence does not support either event as contributing to Ms Zahner's decompensation
on 7 October 2010.
[145] As noted in several places above (paragraphs [56], [117] and [119]) the identified cause of Ms Zahner's
decompensation, accordingly to Drs Tiller and Chau, respectively, was that she whistle blew at work about a
co-worker and a manager taking drugs and that she was under pressure from human resources and co-workers
not to take the matter further.
[146] However, whilst she might have "whistle blown" to Mr Larsen on 6 October 2010 about Mr Gashi allegedly
dealing drugs to Mr Nunn she was not, on my findings, under any pressure from any member of management or
any co-workers not to take the issue further.
Conclusions
[147] In relation to the matters I am required to consider in deciding Ms Zahner's Appeal in accordance with s.32 of
the Act (see paragraph [5] (above)) I have reached the following conclusions:
•
•
•
•
Ms Zahner is a "worker" in the meaning of the Act;
she suffered a psychiatric or psychological injury;
her injury appears to arisen out of, or in the course of, her employment but, for reasons which follow, it is
not necessary to make a definitive finding on the point; and
while her injury was indirectly linked to her employment, her employment was not a siginificant
contributing factor to her injury.
[148] In terms of Ms Zahner's nominated "stressors" (see paragraph [109]), I have not been persuaded by the evidence
presented that there were drugs in the workplace. The best that can be said about that issue is that Ms Zahner
was (allegedly) offered drugs by Mr Gashi in May 2010 and that Mr Gashi (allegedly) told Mr Phu in September
2010 that a packet he put into a cupboard in the staff kitchen contained marijuana for Mr Nunn. However, given
my findings about the credibility of each of these witnesses I do not accept that either of these events occurred.
Further, while one staff member told Mr Larsen they had seen Mr Gashi with a small bag with white-looking
powder and another had seen him with a plastic satchel, which he said was drugs left over from the weekend,
no- one could definitively state that what they had seen were drugs. For all anyone knew, Mr Gashi might just
have been trying to "big note" himself.
[149] In relation to Ms Zahner's claim that management took no action concerning drugs in the workplace or Mr
Gashi's bullying and intimidatory behaviour, I have concluded (see paragraph [142]) that DJs' response to those
issues was virtually immediate, with Mr Larsen being asked to investigate those matters within 24 hours of them
being raised.
[150] Finally, in relation to the alleged bullying and harassing behaviour of Mr Gashi, I have found (see paragraphs
[119] and [143]) that Ms Zahner was not subjected to any such behaviour prior to 3 October 2010. Further,
while there was evidence of such behaviour on Mr Gashi's behalf on 3 and 5 October 2010, nothing in the
medical evidence suggested that these events contributed to her decompensation.
[151] In reaching my conclusion that Ms Zahner's employment was not a significant contributing factor to her injury, I
note the President's Decision in Vesna Miseveski v Q-COMP2 to the effect that events that did not occur in the
workplace could not have contributed to the development of a (work-related) psychiatric or psychological
condition.
[152] Overall, I gained the impression that Ms Zahner's decompensation on (or around) 7 October 2010 occurred
primarily as a result of her apprehension that Mr Gashi might take some recriminatory action against her as a
result of, firstly, her having made a complaint about him to Mr Nunn and Ms Harwood, and, secondly, Mr
Byrnes' disclosure to Ms Harwood that Mr Gashi was (allegedly) dealing drugs to Mr Nunn.
[153] In this respect, I note the report of Dr Byth at paragraph 13.2 (see paragraph [65] above) where he stated: "this
psychiatric condition was caused by the psychological trauma experienced at the time of her leaving work in
2
Vesna Misevski v Q-COMP (C/2009/29) - Decision <http://www.qirc.qld.gov.au>
28
October 2010, when she felt threatened and intimidated by another worker, particularly after she notified her
employer that he was selling drugs at work." (my emphasis).
[154] On her own admission, Ms Zahner was scared of Mr Gashi because of his "tough guy looks", his (alleged)
involvement with a bikie gang, her belief he was selling drugs, his (alleged) statement that it was acceptable to
"knock a woman around" if they crossed him, the fact that he was a cage fighter and his (alleged) statement (if he
actually said it - see paragraph [51](a)) that if he was upset with someone it wouldn't be him who dealt with that
person "it would be the Bandidos".
[155] My impression was reinforced by Ms Zahner's evidence about dropping off her Workers' Compensation Medical
Certificate into Mr Larsen's office after her visit to Dr Tiller on 7 October 2010 (see Exhibit 7 and paragraph
[24](a), above). She said she was so scared that Mr Gashi or Mr Nunn might see her that she was shaking with
stress and only stayed for five minutes.
[156] On my reading of them, the medical reports of Dr Tiller, Dr Chau and Dr Byth support a finding that Ms Zahner's
decompensation was not as a result of events which happened in the workplace but, rather, as a result of Ms
Zahner's utter fear that by "whistle-blowing" on Mr Gashi (including Mr Byrnes' disclosure to Ms Harwood of
his alleged drug dealing) he would, in some way, take action to harm her.
[157] Her fear, however, was not based on any action Mr Gashi might have taken towards her or anyone else, or any
physical threat he might have made to her or anyone else, but, rather, on her impression and perception of what
he might do, based upon his looks, his "tough guy" talk, and the things which Mr Byrnes and Mr Phu were also
saying about him. In this regard, something more tangible than impression and perception is needed to establish
a link between her employment and her injury.
[158] Accordingly, while it is arguable that Ms Zahner's psychiatric or psychological injury had some indirect
association with her employment (in the sense that she and Mr Gashi worked together in the same department of
DJs), her employment was not a significant contributing factor to the development of her injury.
[159] It follows that Ms Zahner's appeal must be rejected on the basis she has failed to establish the requisite linkage
between her employment and the cause of her injury.
[160] For the foregoing reasons I dismiss Appeal No. WC/2011/156. I confirm the decision of Q-COMP dated 8
August 2011 and find that Ms Zahner's Application for Workers' Compensation, originally lodged on 7 October
2010, is one for rejection. I reserve the question of costs.
[161] I determine and order accordingly.
A.L. BLOOMFIELD, Deputy President.
Hearing Details:
2012 13, 14 and 15 February (Hearing and Oral
Submissions)
3 April (Transcript received)
Released: 3 December 2012
Appearances:
Ms J. McClymont of Counsel instructed by Shine Lawyers
for the Appellant
Mr C. Clark of Counsel, directly instructed by the
Respondent.