Facts

A recent decision heard in the Brisbane Supreme Court of Keegan v Sussan Corporation (Aust.) Pty Ltd [2014] QSC 64 highlighted the importance of an employer responding to an employee’s complaint of bullying and harassment.

The Plaintiff alleged she suffered a psychiatric injury as a result of bullying and harassment by her supervisor store manager over a period of eleven working days whilst working for the Defendant following her return from maternity leave. The Plaintiff was employed by the Defendant as an assistant store manager and had only recently returned after maternity leave under the new supervisor, Clarke.

The conduct the Plaintiff complained of included unwarranted criticism about the previous state of the store, not signing up customers to the store discount programme, poor handwriting on reports, failing to remove security tags from clothing purchased by customers and not mopping the floor properly. The Plaintiff also alleged her supervisor was more sociable and friendly towards other staff in comparison to her. Evidence was given that Clarke was an inexperienced manager and the Plaintiff had been a longstanding assistant manager who had taken maternity leave with the intention to return. The evidence showed there was some animosity between the Plaintiff and Clarke given the Plaintiff’s experience and Clarke taking over the former supervisor whilst the Plaintiff was on maternity leave.

The Plaintiff alleges she contacted the Defendant’s State Manager on the day four to complain and was told she was going to have to “work it out for herself”. She was further given patronising advice to “put some lippy on” and “go home to your bub”. No attempt was made to investigate despite the Defendant having bullying and harassment policy.

The Defendant denied liability, arguing the Plaintiff had a pre-existing vulnerability and had an extraordinary and unforeseeable psychiatric response to essentially unremarkable behaviour by a supervisor towards her.

Decision

The Plaintiff established breach. The trial judge stated there is no reason why the Defendant ought not to be attributed with the knowledge of its State Manager or responsibility for her actions or those of its store manager. The trial judge held compliance with bullying and harassment processes would not necessarily ensure mental wellbeing for an employee complaining of bullying but it would likely assist.

The trial judge held even if psychiatric injury was arguably only an insignificant risk at the time the Plaintiff made her complaint to the State Manager, the Defendant’s failure to then properly address the bullying complaint ensured the risk was not insignificant.

The trial judge held a reasonable person in the Defendant’s position would have taken precaution against the risk by properly addressing the bullying complaint and a reasonable person would have taken such a precaution because, an inept response heightened the probability a psychiatric injury may occur - and any psychiatric injury has the potential to be very serious. The trial judge held the burden of taking the proper precaution to avoid the risk was not unreasonable, because through its bullying and harassment policy it was a burden the Defendant represented it could meet.

Having regard to the psychiatric evidence the trial judge found the experience of bullying by the store manager on behalf of the Defendant was causative of her psychiatric injury. Judgment was given in favour of the Plaintiff.

Implications

An employer simply having a policy for bulling and harassment is not enough. Employers need to ensure their policies are followed by management proactively to address any concerns or complaints by staff. Such actions will assist in the management process and defend against potential costly claims.