Author: Lehanne Bleumink, Gold Seal HR Services Manager.
Workplace bullying and harassment are real and unfortunately still happen today. As we all know, bullying is unacceptable behaviour and should not be tolerated under any circumstances in any business, no matter who you are. Having well drafted policies and procedures will not be enough on their own for an employer to avoid vicarious liability.
In a recent case in the Queensland Supreme Court an employee was awarded almost $1.5 M after suffering from workplace harassment, bullying and managerial mistreatment. The Judge in this case awarded $1,703,530 in damages against the employer, whose Chief Executive Officer’s “unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard” of the employee resulted in a serious psychiatric injury. The employer was found vicariously liable for the CEO’s actions and to have breached its own duty of care.
The case is Robinson v State of Queensland  QSC 165. This case acts as an important reminder for employers to be vigilant in taking reasonable care of their employees to avoid psychiatric injury.
Ms Robinson was the District Director of Nursing for the Cape York Health Service and brought her claim against the State of Queensland for negligence and vicarious liability. She complained that, from March 2010 to 17 January 2011, the CEO, Ms Turner, repeatedly harassed and mistreated her and alleged that she had suffered a psychiatric injury as a consequence of Ms Turner’s repeated managerial mistreatment for which the employer (the Defendant) was vicariously liable.
This conduct included:
- Unjustified, loud and aggressive disciplining and belittling of her in public and in front of other employees on multiple occasions.
- Failing to inform her of allegations against her and failing to provide those allegations in writing despite repeated requests.
- Isolating her on many occasions, including by failing to address her reasonable queries, failing to meet her for requested private discussions.
- Humiliating her by making substantive decisions about her employment and communicating these decisions to staff without first consulting, or advising her.
This mistreatment caused Ms Robinson to develop a chronic adjustment disorder. She never returned to work and subsequently retired early due to her injury.
THE COURT’S FINDINGS
Justice Henry found that the CEO’s conduct constituted unlawful workplace bullying and harassment, and a breach of the Defendant’s own Workplace Harassment Human Resources Policy, which required managers to continually model appropriate and ethical behaviour. The Court found that the Defendant was liable for two breaches of duty owed to Ms Robinson.
Firstly, the Court held the employer breached its duty to take reasonable care to avoid psychiatric injury by failing to take “timely and determinative action” on complaints made against Ms Robinson by an employee, Ms Holmes, and by Ms Robinson against Ms Holmes. The Court said that while other employees were involved in this breach, the breach was caused by the conduct of Ms Turner, the CEO, through which the Defendant was held vicariously liable.
The Court found that the breach of this duty and its effects on Ms Robinson were “ongoing” and said that “its effect would inevitably been compounded by other forms of managerial mistreatment of Ms Robinson” which worsened over time.
Secondly, the Court held that the Defendant had breached its duty to take reasonable care by failing to prevent Ms Turner’s course of managerial mistreatment (which the Defendant was vicariously liable for). In reaching this finding, the Court further said that the Defendant’s imputed knowledge of Ms Turner’s conduct, meant that it should have intervened to prevent the continuation of the course of conduct. The Defendant failed to adequately monitor its employee’s conduct.
What behaviour constitutes managerial misconduct?
The Court set out in detail, the instances found to demonstrate a course of managerial mistreatment of Ms Robinson by Ms Turner. In summary, these included unjustified blaming, humiliation, belittling, isolation, undermining and contemptuous disregard of Ms Robinson. The Court found that the breaches were causative of the psychiatric injury suffered by Ms Robinson.
In total, Ms Robinson was awarded a sum of $1,703,530 less the amount of $234,539 workers’ compensation payments already received ($1,468,991). This sum accounted for past and future economic loss, medical and rehabilitation expenses, and general damages for pain and suffering.
LESSONS FOR EMPLOYERS
This case serves as a reminder for employers of the importance of ensuring that they have appropriate policies and procedures in place to address workplace bullying and psychological bullying. However, having well drafted policies and procedures will not be enough on their own for an employer to avoid vicarious liability. Employers must also ensure employees understand how to raise any concerns they may have in this regard.
Where the alleged perpetrator is a senior manager, the employer must ensure that its procedures provide for a prompt and impartial investigation and for appropriate disciplinary action to be taken if the allegations are substantiated.
For assistance on any of your HR/IR requirements – call Gold Seal on 03 9510 5100 or email HRServices@goldseal.com.au