Proceedings

The 51-year-old dock worker, whom Lawyers Weekly has anonymised, was labelled a “rat dog”, subjected to death threats, and had an unknown dock worker defecate in his boots. He was ostracised by his colleagues for repeatedly reporting safety breaches on site.

In January of this year, County Court Judge Philip Ginnane found that the aforementioned conduct detailed did not amount to bullying.

His Honour dismissed the case after a 23-day trial, finding that the man’s employer — logistics company DP World — could not have reasonably been expected to intervene, as there was no pattern of behaviour.

However, yesterday (Wednesday, 21 December), the Victorian Supreme Court of Appeal overturned the decision of the County Court, with the court accepting that the anonymous stevedore suffered a serious psychological injury as a result of the bullying.

Borrowing from what the High Court said in McLean, Justices Jonathan Beach, Cameron Macaulay and Terence Forrest observed that, “today, the prevention of bullying or harassment in the workplace is ‘unquestionably one of the modern responsibilities of an employer’”.

“Moreover, it was no answer to the plaintiff’s claim to say that training or instruction given by the defendant would not likely have eliminated any bullying to which he was subjected. It is not at all apparent from the [Country Court] judge’s reasons how His Honour reached this conclusion, other than from his acceptance of the defendant’s proposition that this was a ‘robust workplace environment which was not for the faint-hearted’, making it difficult to eliminate personal animosities,” the justices detailed.

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“That proposition had little evidentiary foundation.”

“It simply assumed that the defendant, by putting up signs in the workplace and giving rudimentary training to its employees, had done all it reasonably could have done to eliminate bullying and harassment,” the justices went on.

“Plainly, an employer has other weapons in its armoury to prevent the continuance of workplace bullying once it knows or ought reasonably to know of the existence of the same in its workplace.”

Consideration of conduct in totality

In the County Court decision, Judge Ginnane referenced WorkSafe Victoria’s definition of workplace bullying in His Honour’s reasons, that “bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety” — among other such definitions.

The Court of Appeal reflected: “While the judge correctly observed that bullying is not a separate tort, he nevertheless analysed the various incidents of bullying and harassment alleged by the plaintiff by reference to the definitions of bullying to which he had referred.”

“A number of incidents which the judge accepted had in fact occurred (for example, the defecation in the plaintiff’s boots) were determined by the judge not to be bullying on the basis that the particular incident was not ‘repeated’,” Justices Beach, Macaulay and Forrest noted.

“There can be no criticism of His Honour for examining the evidence in respect of each incident separately to determine whether or not the incident occurred. Equally, there can be no criticism of an analysis which starts by determining whether or not a proven incident amounted to bullying.

“The gap in his Honour’s reasoning process was, however, not to then consider whether the totality of the incidents he found to have occurred amounted to bullying; more particularly, whether (again in totality) they provided a basis for finding that the defendant was, at some time during the plaintiff’s employment, in breach of its duty to provide a safe system of work.”

A ‘clarified’ definition of workplace bullying

In a statement, national plaintiff firm Shine Lawyers said that the definition of workplace bullying “has been clarified” in the wake of the Court of Appeal’s ruling.

Speaking following the ruling, Shine Lawyers public liability solicitor Shakira Ramsdell said: “This isn’t just a victory for my client, but everyone in Victoria who has been bullied in the workplace.

“An employee shouldn’t have to be repeatedly targeted in the same way by the same person before an employer is expected to intervene.

“This decision recognises that bullying takes many forms — whether it’s verbal or physical, direct or indirect — and such conduct should be viewed in its totality.”

Ultimately, the orders made by Judge Ginnane dismissing the plaintiff’s claim in negligence and awarding costs against the plaintiff were set aside, and the plaintiff’s claim in negligence is to be remitted to the County Court for rehearing and determination by that court.

Shine Lawyers will continue to seek compensation on his behalf, it said.