Supreme Court awards damages after sustained workplace bullying

 The Victorian Supreme Court has taken into account an employer's inaction in awarding damages of almost $600,000 to an employee who developed a severe psychological condition from "sustained workplace bullying" by her at times violently moody manager. 

Justice John Dixon found that Legibook, which operates the Monash Law Book Co-operative – a specialist outlet that sells discounted law books to students at Monash University - had "unnecessarily and unreasonably" exposed a "bubbly" 61-year-old female part-time sales assistant to a hostile work environment that "cumulatively broke her mental health". 

He found that between 2003 and 2007 the store's manager subjected the sales assistant to sustained intimidation, bullying and harassment. 

"I am satisfied that had the [employer] acted prudently and appropriately in 2003, it is likely that the [sales assistant] would not have suffered any, or any significant, psychological injury and that the [employer's] negligence, as I have found it, was a cause of her injury, loss and damage," he said. 

The sales assistant gave evidence that she sent a letter to the Board in 2003, saying: "I do not wish to be continually subjected to sarcasm, hostility, rudeness, and violent behaviour, threat of termination or lack of consultation within the workplace". 

However, she told the Board she believed she could "cope" with the manager's behaviour, and asked the Board to "sit on it at this stage and take the comments on notice", and not issue a formal warning. 

The Board considered her allegations and told her that it would provide written policies dealing with workplace conduct, in addition to employment contracts by Easter that year, and that any repetition of a book throwing incident (see below) would likely trigger a formal response from the Board, whether or not she required it. 

The Board didn't confront the manager about what it considered to be acceptable behaviour. 

In 2005 the sales assistant informed the board that tensions had re-emerged during the busy sales period at the beginning of semester. Again the board promised the sales assistant it would provide the workplace documents – but none were forthcoming. 

Events came to a head in mid-July 2007 after an argument about the location of law notes for students, with the manager telling the sales assistant: "Well why don't you just get out – get out of Legibook, and go and find another job, and just go away". She replied that she'd bring a bullying claim against him. 

In tears, the sales assistant called the chair of the board to tell him she'd had enough after five years of the manager's bullying behaviour. 

The board responded by expediting the completion of the employment contracts that it promised four years earlier, and by formally engaging lawyers, who recommended the board hire a workplace consultant to investigate. 

In response to the investigator's recommendations, the board told the manager that if he continued the conduct and didn't consent to "a range of professional support", the board would have no alternative but to dismiss him. 

The manager resigned shortly afterwards. 

Specific examples of bullying cited by the sales assistant included that the manager threw a book at her head in 2002, which she needed to duck to avoid, leaving her "very distressed", but not wanting to "make a fuss" in her new job; and yelled that he would sack her if she couldn't memorise the booklists, leaving her feeling "incompetent without understanding why". 

The sales assistant gave evidence of other typical exchanges, which Justice Dixon said formed a pattern of behaviour that overall made her feel fearful, belittled and unwanted, including: 

  • sneering and yelling at her over how books should be arranged, including saying to her "For fuck's sake, will you put them where I want them", or "What the fuck did you do that for"; 
  • repeatedly saying in response to her questions: "Because I want it that way", and "I hate you asking me questions all the time"; 
  • belittling and humiliating her in front of others by intervening in her conversations with students in a disrespectful and demeaning tone; 
  • leaving her out of workplace activities deliberately or giving her meaningless tasks; and 
  • reminding her repeatedly of errors or mistakes. 

Justice Dixon found the manager's periodic conduct "would be expected by a reasonable person to humiliate, intimidate, undermine or threaten" the sales assistant. 

"In a restricted and confined workplace environment, such behaviours imposed substantial, and significant, emotional stress and distress on [sales assistant]. I find that [the manager's] conduct in the workplace threatened to, and did, damage the mental health and wellbeing of the [sales assistant] throughout the course of her employment by [Legibook]," he said. 

Employer can't abrogate responsibility for assessing risk of injury to employee, says Court

On the culpability of Legibook, Justice Dixon said the risk of injury was clear in 2003, evidenced by the Board anticipating a risk of psychiatric injury to the sales assistant from the manager's conduct, and its failure to act. 

As a not-for-profit organisation, Legibook's Board was composed of volunteers - students and ex-students who were practicing lawyers - which Justice Dixon said possibly "explained, but not excused" its inaction in responding to the sales assistant's complaints. 

He rejected the employer's argument that the sales assistant didn't complain about any symptoms that might warn it of possible psychiatric injury, and that it would have been inappropriate for it to have spoken with the manager when she had asked the board not to. 

"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 especially when such choices were, at least, induced by those misrepresentations. 

"Seeking assurances from the [sales assistant] that she was happy with the board's handling of her complaint in the circumstances constituted an inappropriate response," he said. 

Justice Dixon found that Legibook's conduct "fell short of the expected standard of an employer" by failing to: 

  • investigate properly the complaints in 2003 and 2005; 
  • provide clear job descriptions, employment contracts and workplace policies, and repeatedly misrepresenting to the sales assistant that these documents were imminent; 
  • assess the risks identified in March 2003, despite the Board anticipating that it could potentially result in a Workcover claim; 
  • monitor, on an ongoing basis, the behaviour of its employees, including by providing training and a complaints procedure; 
  • consider informal responses, such as speaking directly with the manager about the nature of workplace conduct; 
  • provide a safe return to work procedure. 

Justice Dixon said the periods of calm in the workplace or "absence of overt continuing behaviour" didn't "eradicate or alleviate" the risks that the board had foreseen in 2003. 

"When considering breach, a reasonable employer looking forward to identify what it should have done to avoid injury, having identified a risk, could not simply assume that a continuing absence of complaint, or renewed complaint, meant that the risk had abated," he said. 

He also rejected Legibook's argument that in comparison with the facts in the recent Court of Appeal decision in Brown v Maurice Blackburn Cashman, the manager’s expressions were "instances of robust expression of frustration" rather than repeated unreasonable behaviour towards the sales assistant that endangered her health. 

Rejecting the employer's argument that the sales assistant had a pre-existing psychological problem that caused her injury, Justice Dixon awarded her $292,554.38 for pecuniary loss and $300,000 in damages for pain and suffering. 

He imposed a 10% discount for contingencies based on an assessment of the sales assistant's future economic loss, instead of the standard 15% per Club Italia (Geelong) Inc v Ritchie , and asked the parties to make submissions on costs. 

Slater and Gordon personal injury lawyer Gary Clark, who represented the sales assistant, told Workplace Express that while he couldn't comment on the specifics of the case, recent bullying cases such as the Willett v Victoria decision, in which a former detective senior police constable was awarded $250,000 in damages, recognised that psychological injuries can be devastating to individuals. 

Clark said workplace bullying is systemic and ongoing behaviour and once an employee makes a complaint, the employer has a positive obligation to investigate.