The Legal Duty to Protect Workers
In accordance with the Work Health and Safety Act 2011, businesses are under a legal duty of care to protect their employees’ health and safety at work, including an obligation to protect the psychological health of their staff.
Exemplified by the below examples, there have been numerous cases in which the courts have found against employers and awarded compensation to employees for the psychological impact of workplace bullying and harassment, due to the employer’s negligence in failing to meet this duty of care.
These cases highlight the responsibility on employers to address bullying and harassment complaints seriously and appropriately, and to ensure that employee wellbeing is not put at risk by the workplace environment. They also emphasise the need for businesses to be both pro-active and re-active in addressing matters of workplace bullying.
Summary: A female labourer at a construction company in Melbourne suffered psychiatric injuries following abuse, bullying and sexual harassment. She sued her employer for negligence in failing to provide a safe working environment, and was awarded $1.36 million.
The labourer endured sexually explicit remarks and threatening comments like “I will take you into the container and f*** you” and “anything that bleeds once a month should be shot”. A co-worker once grabbed her by the hips and simulated a sex act on her. She was reluctant to complain to her foreman, as he was also responsible for some offensive remarks, having called her “useless”, a “spastic” and a “bimbo”.
She reported a rape threat to the person responsible for HR, who invited her to “come to my place… we will have a drink and talk about it”. She then received an anonymous call from a male calling her “a c***”. She did not return to work after this.
The labourer suffered psychiatric injuries including depression and post-traumatic stress disorder. The Supreme Court of Victoria found the employer to be negligent in allowing the woman to be subjected to extensive bullying and harassment.
Summary: A Queensland employee lodged a negligence claim against her employer after she experienced bullying and harassment by her store manager resulting in psychiatric injury. She was awarded $237,770 in damages.
After returning from maternity leave, the employee endured exclusion from business discussions, unwarranted criticism of past and present performance, and was repeatedly spoken to in an ‘aggressive and nasty’ tone by her store manager.
The employee informed the State Business Manager that she was being bullied, and was told to “put some lippy on” and “go home to your bub”. The employee made a further bullying complaint several days later and was told to “work it out herself”. She was subsequently diagnosed with a psychiatric disorder and filed a negligence claim.
The Queensland Supreme Court held that the employer did not comply with its own Bullying and Harassment Policy, and failed to treat the complaint with appropriate seriousness and confidentiality. The Court concluded that psychiatric injury would have occurred as a result of the employer’s failure to handle the complaint in accordance with the policy, and as such, the employer had breached its duty of care.
CASE STUDY 3
BAILEY V PEAKHURST BOWLING & RECREATION CLUB LTD  NSWDC 284 (NSW DISTRICT COURT, LEVY SC DCJ, 3 NOVEMBER 2009).
Summary: An employee received $507,550 in compensation following persistent harassment, intimidation and bullying by her supervisor.
Over a two-year period, the employee endured vulgar language, threats that she would lose her job, pressure to break liquor licensing rules, pressure to resign her union membership, changes in her work classification such that she lost pay and seniority, and underpayment of wages.
The treatment of this employee by her supervisor damaged her mental health and she was referred to a psychologist. She was diagnosed with Generalised Anxiety Disorder, Post-Traumatic Stress Disorder and depression. Her prognosis suggested it was unlikely that she would return to paid employment.
The District Court of New South Wales concluded that the employer had breached its duty of care to provide a safe work place, and awarded damaged.
Summary: An employee received compensation for psychiatric injury resulting from persistent bullying following her promotion to a management position. She was awarded $339,722 in damages.
The employee did not receive any management training prior to her promotion, and other employees responded with bitterness and resentment about the removal of the previous team leader. The employee endured increasingly hostile behaviour, including spreading rumours, disobeying requests, making offensive and vindictive comments, and a failure to provide assistance during busy periods.
The team members eventually convened a meeting (to which the employee was not invited), and drafted a document listing complaints against the new team leader, which was given to her manager. The manager accepted the document and refused to intervene when requested to do so by the employee. The employee also sought assistance from other managers who failed to intervene.
The employee eventually left the position due to the development of psychiatric conditions, including anxiety and depression.
The Supreme Court of New South Wales found the employer to be negligent in its duty of care to create a safe working environment; the managers involved had the capacity to take preventative action, but failed to do so.