A recent Victorian Supreme Court decision in Swan v Monash Law Book Co-operative demonstrates the importance of Employers promptly and adequately responding to and dealing with allegations of workplace bullying at the time such conduct is identified.
The case highlights the fact that failing to investigate workplace bullying allegations can have serious implications for both Employers and their employees. In this case Ms Swan, a former part-time retails sales assistant brought an action in the tort of negligence against her Employer, alleging that her Employer owed a duty of care towards her to provide a safe workplace.
Swan further claimed that her Employer breached that duty of care to her by failing to act on her complaints complaints concerning workplace bullying by her Manager. As a result of such a failure Swan claimed she had a mental breakdown after being subjected to over five years of abusive and violent outbursts from her Manager.
Swan claimed damages for pain and suffering and pecuniary loss from her Employer for
a psychiatric injury she has sustained in the course of her employment by the defendant.
She alleges that the negligence of her Employer caused that injury by exposing her to an
unsafe workplace in which she was subject to bullying, harassing, and intimidating conduct.
Employers have a positive obligation to provide a safe workplace under Occupational Health and Safety Legislation and must act responsively and appropriately when confronted with allegations of workplace bullying in order to provide a safe workplace. Employers have a duty of care for your health and wellbeing whilst at work. An employer that allows bullying to occur in the workplace is not meeting this responsibility.
The Court awarded Swan damages in the sum of $592,554, having accepted expert
evidence that she had developed severe psychological disorders from being subjected to an ‘established pattern of workplace bullying’ by her Manager over a five year period. The damages comprised $292,554.38 for loss of past and future earnings, and general damages of $300,000 for pain and suffering and loss of enjoyment of life.
The damages award was based on an assessment that Ms Swan was suffering from a major depressive disorder and a generalised anxiety disorder, with features of traumatisation with no realistic capacity for work in the future.
In the Court’s view the inaction on the part of her Employers in the face of the workplace bullying occurring in Swan’s workplace led to years of unnecessary and unreasonable exposure to a hostile work environment, and caused her to sustain permanent psychological damage.
The Court was particularly condemnatory of the Employer’s inaction over a five year
period. Not only did the Employer neglect to investigate the employee’s complaints, it failed
to implement simple measures to deal with the allegations of workplace bullying. This inaction caused the situation to escalate and resulted in longstanding harm being sustained by Swan.
The court relied on expert evidence in finding causation, accepting the evidence of two
witnesses who submitted that earlier intervention would have reduced the severity of the injuries sustained by Ms Swan.
The Court found that her Employer, Legibook, was negligent in that it failed to adequately protect her health and safety.
The case is the most recent of a series of cases in which employees have pursued damages for bullying claims, alleging serious injuries under workers’ compensation laws, by claiming
their Employer was negligent in failing to take reasonable care for their health and safety.
The Could held that the risk of injury to Ms Swan was reasonably foreseeable, especially in
view of the Employer Legibook’s Board of Management’s acknowledgements about the potential impact of the relevant Manager’s bullying behaviour as early as 2003 when Ms Swan first notified the Board of her Manager’s behaviour.
The Employer’s legal team, in defending the claim, sought to rely upon a line of case law
which suggested an employer wasn’t liable for the risks of stress volantarily assumed by an
employee in carrying out their position. In this case, Ms Swan had expressed the view to the
Employer’s Board of Management that she thought she would be capable of handling her
Manager’s abusive and bullying behaviour.
However, the court distinguished this line of authority raised by the Employer, in that the
in that the psychiatric injuries in those cases were related to the Employee’s workload.
By constrat, in Swan’s case the psychiatric injuries were not related to her workload and
could therefore not be accurately said to be connected to her employment position.
The case demonstrates that employers must actively engage in a comprehensive assessment of risks and cannot merely rely on an employee’s assertion that they are able to cope with behaviour which constitutes bullying once such behaviour has been identified and they are on notice of such behaviour.
From 2002 to 2008, Ms Swan worked for Legibook as a part-time retail book sales assistant.
She alleged that throughout her employment her Manager engaged in bullying, harassing
and intimidating conduct and that Legibook failed in its duty as an employer to take
reasonable care for her safety.
Ms Swan stated that she first reported a conflict she was experiencing with her manager in 2003 to the Legibook Board of Management. This behaviour involved allegations that Swan’s Manager had thrown a book and calculator at her in the book shop and was generally moody. The Board characterised the behaviour as “bullying” and noted that there were a number of workplace problems they could and would address.
However, having identified the behaviour and the measures they would take in response, no such action was forthcoming. The Board noted in their minutes of meeting that they may be vicariously liable for the Manager’s behaviour.
The behaviour reported included ‘sarcasm, hostility, rudeness, violent outbursts and threats
of termination of employment by her Manager, even though he had no authority to dismiss her.
Swan alleged that the defendant’s negligence in failing to intervene and implement measures to prevent the prevent the behaviour over a number of years caused her psychological injury by exposing her to an unsafe workplace in which she was subject to repeated bullying, harrassing and intimidating conduct.
There was evidence that the Board had considered the issue, noting the risk the Manager posed for both the Board and Ms Swan’s wellbeing, if substantiated. Although the Board formed the view that it had obligations to the employee to protect her from the behaviour of her Manager, it failed to follow through and implement measures it identified and recommended to deal with the behaviour.
Meanwhile, the behaviour from the manager complained of continued unabated and was raised once again by the Employee who brought the Board’s attention to it in 2005 and 2007.
Significant psychological and psychiatric evidence was tendered by Swan to the effect that the conduct caused her to go from a ‘bubbly and loquacious’ person, to suffering from a moderate to severe major depressive disorder and generalised anxiety disorder, resulting in her being continuously unfit for work from 2007 and into the foreseeable future.
Dixon J formed the opinion that the sarcastic, belittling, rude and hostile manner in which Swan’s Manager related to her was largely due to an authoritarian management style adopted by her Manager after hearing evidence from both Swan and her Manager.
Dixon J held that Legibook had failed in its duty of care to Ms Swan by not responding
adequately to Ms Swan’s 2003 complaint. The Court found that the defendant failed to take
appropriate action, including more clearly defining the relations between it’s employers and
employees, and implementing workplace policies setting out appropriate standards of
conduct between employees, developing a workplace greivance process and invesitgating and dealing with allegations of workplace bullying.
In particular the Judge remarked that ‘it was inappropriate for [Legibook], purporting to act as a reasonable employer, to rely on choices made by its employee as to the employer’s proper response to the employee’s complaint…Seeking assurances from [Ms Swan’ that she was happy with the Board’s handling of her complaint in the circumstances constituted an inappropriate response’.
In arriving at this finding, the court acknowledged that the Board’s composition, being mostly volunteers without expert knowledge, likely contributed to the approach that was adopted, however likely contributed to the approach that was adopted, however did not excuse the lack of action.
Legibook was a not for profit organisation selling law books for a discount price to law students, operated by a Board of Directors consisting of current and former Monash University Law School students.
In arriving at his findings relating to liability, Dixon J relied upon a definition of bullying which is almost identical to that to be used in the new Fair Work Commission’s jurisdiction, which is in turn drawn from the ‘Worksafe Victoria Guidance Note. Prevention of Bullying and Guidance at Work’.
This highlights the importance of Employers taking into consideration the Codes Of Practices and guidelines regarding workplace bullying which exist under federal and state workplace health and safety laws when managing issues of bullying in the workplace, which were referred to by Dixon J in delivering his findings.
Dixon J expressly acknowledged the relationship between workplace bullying and the risk to health and safety, in referencing WorkSafe Victoria’s guidance note on this issue. The WorkSafe Victoria’s guidance note was also referred to and relied upon by expert witnesses in rendering an opinion as to whether the plaintiff was exposed to an unacceptable risk of psychological injury due to repeated bullying and violence she experienced.
Safety regulators in both Victoria and Western Australia have produced guidelines dealing with bullying which employers in those jurisdictions should consider carefully in managing bullying issues which occur in their workplaces, as they are admissible in cases.
Safe Work Australia has produced an amended draft code of practice for employers (and draft guidelines for employees) which is currently available for public comment.
One of the key lessons for Employers arising out of the Legibook case is that it is inappropriate for defendants to rely on choices made by its employees to guide an employer’s proper response to an employee’s complaint relating to bullying.
Once a defendant is on notice of workplace bullying, a failure to take remedial measures is likely to be seen by a Court as a contributing to the conflict between employees, whilst an ongoing failure to properly confront employees and train them about appropriate workplace behaviour will likely be a factor in whether an Employer has breached their duty to an Employee.
The case serves as a reminder that Employers should have in place workplace behaviour policies policies, complaints and grievance processes concerning workplace conduct and behaviours with a view to addressing risks identified, monitoring and resolving matters.
Once an Employer is put on notice of harassing and intimidatory conduct, it should swiftly move to investigate what is occurring in the workplace and intervene accordingly to deal with conduct which has occurred. Engaging a workplace mediator or conciliator would be one of the strategies that should be adopted by an Employer as a response to such allegations.
Employers should also immediately communicate with the employee allegedly engaging in bullying behaviour regarding appropriate workplace behaviour, indicating that any kind of behaviour having the character of workplace bullying will not be tolerated.
It would also be prudent for Employers to arrange for a third party to carry out a risk assessment after an employee raises a complaint identifying bullying behaviour.
In considering what an Employer should do to avoid a breach, an Employer having identified a risk, cannot simpply assume that an absence of recurring regular complaints necessarily means that the risk identified has dissolved.
The absence of either continuing inappropriate behaviour by an Employee accused of bullying and/or complaints about alleged behaviour, is not evidence that the risk of harm to the an employee’s mental health could reasonably be considered to have disappeared.
All employees should also have safe return to work procedures which are competently managed and executed. The failure to competently carry out safe return to work procedures was identified as one of the aspects which exacerbated Swan’s condition in the Legibook case.
Policy development and implementation about workplace harrassment and specifically bullying, adequate workplace supervision, monitoring, training and information and risk identification, assessment and control, all play an important role in ameliorating the harm caused to employees from workplace bullying and reducing the exposure of an Employer to liability for negligence.
Constultation with employees, hazard and incident reporting, and the monitoring of hazard controls are also identified within most workplaces as being important features in any occupational health and safety risk management program.