Wolters v The University of the Sunshine Coast 1
This case considered the liability of an employer for a worker who claimed she had suffered a psychiatric injury after she was verbally abused by her supervisor, Mr Bradley.
At first instance the worker failed to establish that any breach of the duty of care the employer owed her caused her injuries. However, she proved a breach of contact entitling her to a nominal award of $100.00.
The worker was employed by the University of Sunshine Coast as a security guard. During a power outage at the campus on 14 March 2008 Mr Bradley confronted the worker in an aggressive manner and accused her abandoning her duties - this accusation was not true.
During the confrontation Mr Bradley walked quickly towards the worker and yelled and waved his arms around at her.
On 17 March 2008 the worker made a complaint to Human Resources about Mr Bradley's behaviour however no investigation was conducted into her grievance. On that day Mr Bradley wrote to the Vice-Chancellor accusing the worker of unsatisfactory performance.
Mr Bradley was involved in a similar prior incident with another worker, Ms Carney, on 19 December 2007. At that time Mr Bradley behaved aggressively towards Ms Carney who lodged a formal complaint of workplace harassment and bullying and later lodged an application for workers' compensation which was accepted by WorkCover.
Following the complaint of Ms Carney the Vice-Chancellor of the university had an informal discussion with Mr Bradley suggesting to him that such behavior was 'not good management style' and that he needed to take into account how others might perceive his actions.2
At first instance His Honour Justice Applegarth found that the employer had breached its common law duty of care to the worker by failing to take a reasonable course of action against Mr Bradley after the earlier complaint of Ms Carney. A reasonable response would have included a reprimand and counselling following an appropriate investigation - the informal discussion that took place was an inadequate response.
His Honour then considered whether the worker's injuries would have been avoided had the employer taken appropriate action to reprimand and counsel Mr Bradley after the earlier complaint by Ms Carney and found:
"I am not persuaded that Mr Bradley would have acted differently once he saw [the worker] sitting in Ms Gould's office. The confrontation would have been much the same. It is more probable than not that he would have acted towards [the worker] in much the same way as he did. The incident still would have occurred and its aftermath would have been much the same."3
His Honour’s conclusion in this regard was premised on the fact that this confrontation occurred during an emergent situation.
On this basis it was held that the worker had failed to establish that any breach of duty by the employer caused her injuries.
The Court of Appeal noted the trial judge’s conclusion as to the ambit of the duty owed by the employer in circumstances where it knew of Mr Bradley’s history:
“A reasonable person in the University’s position would have contemplated that there was a real risk of injury if Mr Bradley again engaged in the type of conduct which Ms Carney alleged. A reasonable person, confronted with that forseeable risk of injury, would not have done nothing…”4
The Court of Appeal also noted the finding at first instance that a reasonable response to this risk would have included investigating the complaint of Ms Carney (which had not been withdrawn) and that such an investigation would have confirmed her account and resulted in a reprimand to Mr Bradley and instruction about containing his aggressive behaviour.5
The critical issue on appeal related to the trial judge’s failure to identify the form and content of an appropriate reprimand which ought to have been given to Mr Bradley.
The Court of Appeal accepted that the complaint of Ms Carney ought to have been investigated and held as follows with respect to the nature of the investigation and remedial action that ought to have been taken by the employer in relation to this prior episode:
“It is abundantly clear that had that incident been properly investigated, then it would have been ascertained that Mr Bradley had acted in an aggressive way towards Ms Carney on a mistaken factual assumption on his part that she was hold the unpaid invoice. He acted without first ascertaining the true facts. This serious deficiency in his behavior had an immediate consequence in his aggression towards Ms Carney. It follows logically from this that the appropriate reprimand and counseling that Mr Bradley would have been given would have placed considerable emphasis upon bringing that deficiency to his attention and counseling him to check his facts first before criticising other staff members. He should also have been counselled that any warranted criticism should not be made aggressively but calmly, rationally, courteously, although with the full authority of his office.6
Applying the above finding to the present claim the Court of Appeal went on to hold:
"A focus for the hypothetical inquiry undertaken ought therefore have been upon whether the incident involving the [the worker] would have been avoided had Mr Bradley been reprimanded and counselled in these terms. That focus would have triggered in the mind of the inquirer a recognition that the same behavioural deficiency attended the incident the subject of the litigation. Again, Mr Bradley acted upon his own misapprehension of circumstances; again he failed to check his facts first; and again he acted aggressively, instead of with authoritative courtesy."
Critically, the Court of Appeal found that the trial judge had erred in finding that counselling and a reprimand would not have avoided the worker’s injury. The Court found that with appropriate counselling and a reprimand the worker’s injury would have been avoided because Mr Bradley would have attempted to comply with such training.
The Court of Appeal allowed the worker's appeal based on the finding that it was more likely than not that had the employer taken appropriate action to reprimand and counsel Mr Bradley, the event in question would not have occurred. She was awarded $364,008.06 in damages.
- This decision highlights the importance of investigating the circumstances of similar earlier events or injuries. In this case, the employer's inadequate response to an earlier event was determinative of whether it had discharged its duty of care to the worker.
- Every claim will turn on its own facts, however, where bullying and harassment claims involve a supervisor and/or co-worker with ‘history’, employers will need to establish that reasonable, adequate and well documented remedial measures were taken in the past to prevent future occurrences in order to discharge their duty of care.
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