Legal Cases for Bullying

Green versus Deutsche Bank

In 2006 a UK worker was awarded damages of nearly two million Australian dollars as a result of bullying and harassment she endured whilst employed by the Deutsche Bank group. “It was alleged that Ms Green was subjected to a campaign of harassment and bullying by a group of four women who worked in close proximity to her. The alleged behaviour included amongst other things, ignoring her, bursting out laughing when she walked by, making lewd remarks, and hiding her post. Ms Green raised the problem with her manager and the HR Department but no effective steps were taken to deal with her complaints. The bullying effectively ceased during the middle of 1998 on account of three of the four women leaving the organisation”. Green v DB Group Services (UK) Ltd. [2006] EWHC 1898 (QB) (01 August 2006) Source



Employer’s failure to manage team’s insubordination

In a 2005 New South Welsh case, the appeal judges agreed with the trial judge that the Plaintiff’s supervisor had failed in his duty of care to her in relation to her asking him for assistance in relation to her team’s insubordination. The Plaintiff had won her position as team leader over her former manager. She was awarded nearly $340,000 in compensation. The State’s appeal was dismissed. (Source: www.austlii.edu.au Accessed 9th March 2008) State of NSW v Mannall (October 25 2005), Mason P, Giles JA and Tobias JA of the New South Wales Court of Appeal.



Victimisation and unfair dismissal of legal secretary

In finding that a law firm had victimised and unfairly dismissed a legal secretary, Deputy President Sams of the NSW Industrial Relations Commission found that a senior partner had used language which was “grossly offensive and completely unacceptable”. In his judgement, he added, “moreover, for such language to be used in the workplace by a partner in a law firm with an industrial relations practice, I found to be almost beyond belief”. He awarded 20 weeks’ compensation ($19,660.00) to Ms Toni Neal who was made redundant. (Source: www.austlii.edu.au Accessed 9th March 2008) Neal and Shaw McDonald Pty Ltd and another [2003] NSWIRComm 298 (22 September 2003)



Company held vicariously liable for extreme bullying

The NSW Court of Appeal recently held a company to be vicariously liable for the harassment and extreme bullying perpetrated on a labour hire employee by its Fire and Safety Officer. The trial judge had found that the perpetrator’s conduct was “so brutal, demeaning and unrelenting that it was reasonably foreseeable that, if continued for a significant period of time ... it would be likely to cause significant, recognizable psychiatric injury”. A damages award of $1,946,189.40 was upheld. In this case, Justice Basten and Chief Justice Spigelman did not consider that vicarious liability for the Fire and Safety Officer should be imposed on the labour hire company. (Source: www.austlii.edu.au Accessed 9th March 2008) Nationwide New Pty Ltd v Naidu & Anor; ISS Security Pty Ltd v Naidu and Anor [2007] NSWCA 377 (21 December 2007)



Unfair dismissal following bullying

Ms Kumar legitimately complained on several occasions that her pay was late. Following the genuine complaints, ‘the respondent was intent on forcing her out of employment’ (para 198) and accordingly victimised her in a number of ways including by employing humiliating, isolating and hurtful behaviour towards her. The Deputy President, PJ Sams, AM found that the dismissal was unfair. The judgement at para 223 stated, ‘it would seem unarguable that any dismissal of an employee which was found to be the culmination of a pattern of victimisation, would be found to be unfair. This is most certainly the case here’. The respondent was ordered to pay the applicant 38 weeks pay at the rate of $627 per week. Source: www.austlii.edu.au Accessed 9th March 2008) Swaran Lata Kumar v Macquarie Partnership Lawyers [2005] NSWIRComm 202 (Sams DP) 14 July 2005



Employer makes unreasonable and humiliating demands – refusal by employee – unfair dismissal

A woman performing office and driving duties for a caravan manufacturer was unreasonably abused in circumstances where the employer had made unreasonable and even humiliating demands upon the applicant. The employer had insisted that the applicant do the company banking during her lunch break. He had also demanded that the woman ask bank tellers to fax a copy of a bank cheque drawn in favour of a supplier back to the office. She had reluctantly done so but was embarrassed at having to make such an unusual request. Her employer reacted angrily to her complaint that she had missed her lunch break while in the bank, and to her claim that she could not drive out again to procure manufacturing parts without having had lunch and while she was still feeling upset by his abusive remarks. The NSW commission accepted the evidence of the applicant that she was effectively dismissed, when the employer gave her an ultimatum that if she was not prepared to drive she would be sacked. The commission held that the employer's request that she drive to the suppliers' premises in the afternoon was reasonably refused by the applicant. Her summary dismissal was unwarranted and unfair. "The mere fact that she [was] an employee and often seen by some as a servant, [did] not excuse the sort of conduct that [the employer] indulged in." The commission awarded her an amount of $8,400 gross. Source: www.austlii.edu.au Accessed 9th March 2008). Schneider v Vehicle Assembly Australia Pty Limited [2005] NSWIRComm 1109 7 July 2005.



Dismissal for breach of Code of Conduct

Mr Purser was employed as a Senior Legal Officer by the Commonwealth Attorney General’s Department. He had been dismissed for breaching the Australian Public Service (APS) Code of Conduct. Evidence was given that he had used physically and verbally abusive behaviour towards staff on many occasions. His behaviour included pushing, use of an aggressive posture, yelling, unreasonably criticising work performance and refusal to delegate and transfer files to another legal officer. Mr Purser claimed that his dismissal had been unfair. The Commission found that his dismissal had been valid. Commissioner Deegan commented, (at para 119), ‘I have set out a great deal of the evidence in this matter so as to indicate the seriousness of the behaviour claimed to constitute the breach of the APS Code of Conduct. Any failure to treat a person or a fellow employee with ‘courtesy and respect’ could conceivably constitute a breach of the Code. Many such breaches would not incur a sanction of termination of employment. In the applicant’s case there were numerous, in my view serious, failures to comply with the requirement of subsection 13(3) of the Public Service Act 1999, to treat people with respect and courtesy, many of those failures also constituted harassment’. Source: www.austlii.edu.au Accessed 9th March 2008) Geoffrey Purser v Commonwealth Attorney – PR932560 [2003] AIRC 615 (5 June 2003)



Legal secretary succeeds in her action for unfair dismissal

In 2003, a legal secretary succeeded in her action for unfair dismissal in the Queensland Industrial Relations Commission. ‘The Commission found that Ms Barton was an honest and hard working employee demoralised by the working environment’. ‘The Commissioner made arrangements for the transcript of the proceedings to be sent to the Minister for Industrial Relations, out of concern for the health and safety of employees at the respondent’s other sites’. (Source: http://lawsociety.production.atwww.com/JournalSearch/JournalArticle.aspx?ArticleId=18619 Accessed 9th March 2008) Marilyn Barton v Baker Johnson Lawyers (unreported) Note: not all cases find for the Plaintiff Example:
Wadswoth v Akers and Woolworths Ltd t/as Big W Discount Stores [2007] QADT 17 (9 July 2007) Source: www.austlii.edu.au Accessed 9th March 2008) It should also be noted that not all cases end up in court. Many of them are settled out of court. It should also be noted that not all cases that do end up in court are formally reported (eg NSW District Court cases).



Suicide following workplace bullying and discrimination – findings of a Coronial inquest 2018

Suicide following workplace bullying and discrimination – findings of a coronial inquest 2018

A 53-year-old employee who had worked as an Executive Assistant for the Northern Territory Department of Children and Families for 32 years was demoted in November 2016 following a mental breakdown. The employee’s managers suggested that she be temporarily demoted in order to reduce her ongoing anxiety. HR advised the employee’s managers that the demotion could only occur if the employee consented to a reduction in pay or that she underwent performance management. The financial impact of the forthcoming reduction in pay caused the employee concern which she voiced.

The court heard that the employee was “known to be a meek, quiet and compliant worker who tried her best and was always willing to please”. After her breakdown she was fearful of losing her job and sought reassurance from her managers and work colleagues.

The employee had a number of meetings with her managers during October / November 2016 which did not follow fair process. The employee was not given the opportunity to have a support person at the meetings, the subject of one being “revised workload”. The employee was offered a demotion and informed that it would incur a reduction in pay.

Another “formal meeting” was called with very short notice, without the employee being informed in advance about what the meeting was about and without the employee being invited to bring along a support person.

Following her demotion, the employee’s manager jokingly pointed out that the employee would no longer be able to afford to purchase her regular morning coffee on the way to work.

As well, during a meeting when the employee was doodling on a piece of paper, her manager publicly humiliated her by saying “(…) will share her minutes with everyone”. The employee hanged herself the day after the meeting which her psychiatrist considered was likely to have been a “critical event”.

In the Coroner’s Court in Darwin on 25 July 2018, Justice Greg Cavanagh condemned, the way in which the employee’s employer demoted her, bullied her and discriminated against her. He also condemned the way her case was handled by the mental health services accessed by her.

The Judge said that the HR Unit should have prevented the employee’s demotion and instead supported her whilst reducing her work activities or responsibilities as part of a support plan which “would not include a reduction in remuneration”.

"The conduct of the managers in holding meetings without providing appropriate information about the agenda, without giving appropriate notice or a reasonable opportunity to have a support person present, the teasing about not being able to afford coffee and the humiliation in front of fellow workers was not reasonable management action. In my opinion it was bullying," he said.

Judge Cavanagh stated that the Department’s HR Unit should have prevented the demotion rather than supporting the employee’s managers in the endeavour.

He also pointed out that the Department’s treatment of the employee breached Section 24 of the Northern Territory Anti-Discrimination Act in that the Department failed to accommodate the employee’s attribute namely, “psychiatric or psychological disease or disorder, whether permanent or temporary”.

Recommendations

Territory Families sought an external consultant to review the support or lack thereof given to the employee by Territory Families staff.

The review recommendations included:

  1. The 2010 Australian Human Rights Commission: Workers with Mental Illness – a Practical Guide for Managers be sourced and distributed to managers;

  2. Beyond Blue’s National Workplace program be investigated to determine whether it could be delivered to managers;

  3. Implementation of an unplanned leave reporting system;

  4. Employees with non-work-related injury or condition are provided with a reasonable adjustment plan and monitored appropriately.

Judge Cavanagh recommended that the Department continue training managers as it had begun to do following the death and that HR personnel ensure that they are aware of their responsibility toward employees, particularly those suffering impairment, and that all staff refrain from bullying behaviour.

The court heard that the Department has since introduced mental health training for senior managers, a care plan for employees as well as a model to foster a “culture of conversations”.

You can read the full Coronial findings here:

Inquest into the death of Paula Michele Schubert [2018] NTLC 020 (25 July 2018).

Source www.austlii.edu.au