Bullied employee awarded almost $600,000 in damage

A recent decision of the Supreme Court of Victoria in Swan v Monash Law Book Co-operative [2013] VSC 326 (26 June 2013) emphasises the importance of employers properly responding to and dealing with allegations of bullying. The significant damages awarded to the employee in compensation for her employer failing to protect her from bullying over a period of 5 years, demonstrate the impact bullying had on the employee’s life and the failure of her employer to adequately protect her health and safety.

The Swan decision considered a claim by Ms Wendy Swan against her employer, Monash Law Book Co-operative (MLBC), for pain and suffering and pecuniary loss for a psychiatric injury that she sustained in the course of her employment. Ms Swan alleged that the negligence of MLBC caused that injury by exposing her to an unsafe workplace in which she was subject to bullying, harassing, and intimidating conduct by her manager, Mr Cowell.

Defining the “bullying” behaviour

In this case, some instances of the bullying behaviour arose from significant interactions between Ms Swan and Mr Cowell. However, other instances arose from what Justice Dixon described as a conduct which was, “of itself, relatively innocuous” but was significant because of the “tone and body language of the speaker or the perception of an event that was experienced by one party or intended by the other”.

Examples of bullying behaviour documented in the decision include, Mr Cowell:

• repeatedly subjecting Ms Swan to sarcasm, hostility and rudeness
• throwing a book at Ms Swan’s head
• using foul and offensive language
• threatening to dismiss Ms Swan (when he had no authority to do so)
• disagreeing with Ms Swan in an inappropriate way regarding minor issues such as the placing of stock and use of post-it notes
• rudely interrupting Ms Swan and belittling her in front of third parties
• issuing unreasonable instructions such as directing her regarding how she answer the phone
• excessively scrutinising Ms Swan’s work and whereabouts
• automatically refusing any request of Ms Swan and refusing to provide reasons for the refusal
• providing instructions without explanation; and
• refusing to allocate meaningful tasks to Ms Swan in quiet periods

In terms of the overall atmosphere between the two, Justice Dixon commented that:

The plaintiff alleges that Mr Cowell created an intimidating atmosphere that he knew she found oppressive. Mr Cowell knew that the plaintiff felt intimidated and uncomfortable in his presence, but he didn’t care… Mr Cowell had a particular attitude, flowing from his personality. It is probable that Mr Cowell either positively disliked the plaintiff or simply did not care for her personal idiosyncrasies. In the crowded, cramped book room, which was mostly a private space for the two of them, Mr Cowell felt no compunction to treat the plaintiff with the level of respect that is reasonably expected and commonly afforded between two colleagues working together in such a space. It is out of personality conflict of this sort in that confined and isolated space, which cannot be fully analysed in a courtroom, that the repeating pattern of Mr Cowell’s conduct towards the plaintiff became unreasonable.

Events cumulated in July 2007 when, after disagreement regarding the placing of stock, Mr Cowell told Ms Swan to “get out of Legibook, and go and find another job, and just go away”.

Part of the contentious relationship between Mr Cowell and Ms Swan arose from a lack of clarity regarding Ms Swan’s role, with Mr Cowell alleging that his actions arose from his need, as Ms Swan’s manager, to direct Ms Swan and Ms Swan’s own “insubordinate” behaviour.

Ms Swan complained about Mr Cowell’s behaviour to her employer, the Board of MLBC on a number of occasions.

The employer’s response

Throughout the judgement, the Board of MLBC are shown to be adept at identifying the problem and its likely solution but slow in actually implementing their own recommendations. When first informed of the issues between the parties in March 2003, the Board resolved to settle position descriptions for the two employees and introduce workplace behaviour policies. However, despite re-enlivening this determination each time Ms Swan raised a fresh complaint against Mr Cowell, no such descriptions or policies were developed in the relevant period.

Justice Dixon noted in this regard that “the defendant’s witnesses offered no plausible or compelling excuse for their failure to act.” MLBC did try to connect some of their inaction to a request made at the time of the initial complaint by Ms Swan that the Board only “take her complaints on notice”. However, Justice Dixon on this point stated that:

The defendant pointed to the expressed desire of the plaintiff that her allegations be taken on notice. The need for fairness to both employees by investigating the situation seems to have been surpassed by acceptance of the plaintiff’s ‘choice’ to accept the board’s conduct as appropriate. On any view, it was the easy outcome. But that does not explain why they failed to follow through either with the process of job position descriptions, employment contracts, workplace behaviour policies, employee review and regular monitoring of the circumstances in the workplace or with an informal response.

Justice Dixon went on to find that MLBC’s conduct feel short of the expected standard in that it:

• failed to properly define the relations between it and its employees, and between its employees amongst themselves, and articulate its expectations concerning conduct in the workplace between employees, by job descriptions, employment contracts and workplace behaviour policies
• exacerbated its unreasonable behaviour in not introducing these measures by repeatedly misrepresenting to Ms Swan that they were imminent
• failed to appropriately train its employees and its own members to deal appropriately with such behaviour and complaints when it was occurring
• inappropriately relied on “choices” made by Ms Swan to not proceed when such choices were at least induced by their misrepresentations
• failed to make any assessment of Mr Cowell’s performance that included consideration of inappropriate workplace conduct or consider other appropriate measures to address Mr Cowell’s conduct. In fact the Board never even told Mr Cowell that his conduct was inappropriate
• failed to intervene and investigate when the complaints where first raised or some time thereafter
• failed to have a formal system in place enabling employees to seek assistance when bullying occurred- there was no complaints mechanism or system
• failed to arrange or conduct by itself any risk assessment or monitor the situation; and
• failed to have a safe return to work procedure.

Significant damages warranted

Based on an assessment that Ms Swan is suffering from a major depressive disorder and a generalised anxiety disorder, with features of traumatisation and has no realistic capacity for work in the future, Justice Dixon assessed Ms Swan’s pecuniary loss in the sum of $292,554.38 and $300,000 for general damages for pain and suffering and loss of enjoyment in life. Thus the total damages awarded were just short of $600,000. Costs awards may also be made against MLBC.

Implications for employers

This case demonstrates the high risk employers face in failing to have and implement proper policies, procedures and systems to prevent and deal with workplace bullying. The high damages award, particularly from what many see as a relatively conservative forum such as the Supreme Court of Victoria, may be an indication of a trend towards higher damages in bullying cases. This trend, coupled with the new bullying jurisdiction, makes it vital that employers act now to ensure their organisation is properly prepared.

 

This article was written by Jane Wright, Director and Principal of Workdynamic Australia. The information in this article is for information purposes only and does not constitute legal advice. You should obtain specific advice relevant to your circumstances.