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    Supreme Court dismisses $1.8 million claim for damages & rules farting not workplace bullying.

    Workplace Bullying Savvy HRThe Supreme Court of Victoria has dismissed a $1.8 million claim for damages against a construction engineering company, rejecting the employee’s claims a manager farting in his general direction amounted to workplace bullying.

    The employee, an entry level contract administrator, alleged that the conduct of his work colleagues amounted to bullying and harassment which caused him to suffer various injuries including psychiatric harm and loss of libido.

    The employee claimed that the Company breached its duty to take reasonable care to avoid causing its employees a reasonably foreseeable and recognisable psychiatric injury. He also claimed that his dismissal from the Company was unfair on the basis that his redundancy was not genuine and that he had signed a deed of release under duress.

    The Company denied the employee was bullied at work and said that, even if he was bullied, his injury was not a reasonably foreseeable consequence of its act or omission. The Company relied on the fact that the employee never complained of being bullied nor gave notice (directly or indirectly) of his failing mental state.

    The employee’s case centred on his relationship with three of his fellow employees and an alleged ‘conspiracy’ between these three men to marginalise the employee and terminate his employment.

    The employee alleged, in particular, that in the five to six weeks before his redundancy, his supervisor repeatedly abused him over the telephone and spoke to him in a loud, aggressive, threatening and inappropriate manner about his work performance. However, the Judge found no supportive evidence for the claim.

    The employee alleged his supervisor would regularly "lift his bum and fart" on him or at him and that the supervisor thought this was funny. He claimed this behaviour progressed to the point where he would do it every day. In response the employee said on one occasion, he went down the street and purchased a can of deodorant and came back and sprayed it over the supervisor and called him ‘Mr Stinky’. The employee said that, at one point, he refused to get into a lift with the supervisor and, when asked why, called him ‘Mr Stinky’.

    The employee claimed that, while the ‘farting’ may not amount to bullying, it did however, shed light on the inappropriate working culture at the Company.

    At the trial, the supervisor denied that he attempted to humiliate the employee by “passing wind” on or near him in a repeated way with the intention of distressing or harassing him. He said he could not recall “thrusting his bum” at the employee and “pretending to fart at him”, but admitted he “may have done it once or twice”. He denied “regularly passing wind in the communal office”, but he admitted that, “once or twice”, he had “accidentally passed wind” and was embarrassed about it.

    A witness for the Company gave evidence that there was some inappropriate behaviour in the office, including passing wind, but that it was ‘typical banter or mucking around’. He said that the employee appeared offended by people passing wind.

    A witness for the employee said he recalled the supervisor had a propensity to walk over to the printer and fart quite frequently. He said that while he would “laugh it off or walk out”, the employee may have been offended, it was because he was of “German descent”, whereas “us Australians are sort of brought up you sort of accept it or think oh it’s just –that’s what happens”.

    The judge rejected claims about the frequency of the supervisor's farting or that it was targeted. She said even if the claims were true, it would not necessarily amount to bullying. "It is difficult to see how (the supervisor’s) conduct could have intimidated or caused distress to the (employee)," the judge said.

    As the trial progressed it became evident that the employee was more focused on his grievance about the loss of his employment by way of redundancy, than any bullying that took place during his time at the Company. The Judge said, “his sense of having been betrayed by the Company, and his former colleagues, was palpable”.

    The Judge agreed with the Company that the employee has not been able to accept that his redundancy was due to a downturn in work brought about by the Global Financial Crisis (GFC). “It is telling that, after his redundancy, the (employee) stalked his former colleagues”, said the Judge.

    "It is in a sense tragic that the plaintiff's redundancy appears to lie at the heart of his problems.

    "It seems, regrettably, to have generated a misplaced sense of unfairness at the loss of his job,” said the Judge.

    She concluded that the Company’s staff had not bullied or harassed the employee and noted evidence that domestic stress and dismissal probably led to the employee’s psychiatric injuries.

    Further, the Judge found no evidence to support the employee's claim that his redundancy was not genuine.

    Lessons for employers:

    This trial commenced on 27 November 2017 and ran for a total of 18 sitting days with a decision being handed down on 29 March 2018. It included some 15 witnesses and rose out of employment between 13 May 2008 to 8 April 2009 and the subsequent redundancy of the employee. In this matter the trail Judge remarked that, had the employee not lost his job and been abused over the telephone, the flatulence would ‘never have been a big issue’. Making people redundant will never be an easy or enjoyable process and, as this case demonstrates, it can have a long-lasting impact on individuals and the organisation as a whole.

    The law imposes on an employer a duty to take reasonable care to avoid causing its employees a recognisable psychiatric injury. The content of an employer’s duty will ordinarily involve providing safe tools and equipment, a safe workplace and a safe system of work. In relation to the last of these, an employer is obliged to provide a safe system of work and to establish, maintain and enforce it.

    It is well settled that a safe system of work extends to the provision of competent employees. One of the things the law requires of such employees is that they do not bully, harass, demean, abuse, intimidate or humiliate their co-workers. An employer will be liable if it knew, or ought to have known, that an employee was at risk of being bullied and did not take steps to ameliorate that risk.

    An employer will also be vicariously liable for the negligent acts or omissions of its employees in the scope of their employment. Self-evidently, this may include bullying another employee, where it gives rise to a reasonably foreseeable and recognisable psychiatric injury.

    To make out a bullying claim at common law, a plaintiff must show on the balance of probabilities that there was an established pattern of behaviour in the workplace, which was repeated and unreasonable, and which a reasonable person in all the circumstances of the case would expect to give rise to a recognisable psychiatric illness.

    Savvy HR can provide transition support following individual or large-scale redundancies. We provide practical support to engage employees while treating them with dignity and respect. We have experienced outplacement consultants across Australia, including Brisbane & Sydney. If you have any concerns regarding the process required for genuine redundancy, please contact us.


    Supreme Court of Victoria

    29 March 2018

    Judge(s): Zammit J

    Hingst, David v Construction Engineering (Aust) P/L (ABN 623 9278 1199) (No 3) [2018] VSC 136

    This publication is provided by way of general guidance only and is not to be construed by the reader as legal advice or as a recommendation to take a particular course of action in the conduct of their business or personal affairs. You should not rely upon the material as a basis for action that may expose you to a legal liability, injury, loss or damage and it is recommended that you obtain your own advice relevant to your particular circumstances.

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