What is the cost of avoiding and dismissing bullying in the workplace?
What is the cost of avoiding and dismissing bullying in the workplace? About $436,000 in damages in the case of an administrative assistant who successfully sued for damages as a result of depression and anxiety that was aggravated as a result of her managers bullying (1) It was held that the employer’s failure to exercise reasonable care to avoid or minimise the risk of psychiatric injury, by failing to ensure that the manager did not behave in a harassing or belittling manner, amounted to negligence.
This case stresses the importance of recognising and responding to early warning signs from employees who have been affected by bullying and supporting them to seek help.
Robyn Eaton was employed by Tricare and aged care provider, as an administrative assistant in 2007. When she first started working employees described her as “bright and bubbly”. The bullying behaviour started when a new manager Jane Harrison started in 2009.
In evidence before the court Ms Eaton was regularly treated by her new manager in an “offensive, intimidating, humiliating and threatening” manner. Ms Harrison frequently used confrontational body language and spoke to Ms Eaton in a patronising way. When Ms Eaton approached the manager to discuss her aggressive behaviour, Ms Harrison screamed: “I will speak however I like”. On another occasion, using a raised voice, she said to Ms Eaton “I’ve never met anybody as stupid as you.” Ms Eaton on one occasion complained to Ms Harrison that she felt overworked as she was continually required to work well beyond her contractual hours. Ms Harrison reply was to “get over it”.
Ms Eaton’s pre-existing condition was exacerbated as a result of Ms Harrisons bullying tendencies and she became increasingly withdrawn and would often cry at work. She resigned 1 year after Ms Harrison’s appointment and was unable to return to work due to ongoing depression and anxiety.
Ms Eaton sued her employer TriCare on the grounds they were vicariously liable for Ms Harrison’s bullying conduct, negligent in failing to protect her from the misconduct and liable for failing to address her complaints.
What the court said
In awarding damages, the Queensland Court of Appeal noted that employers owe a non-delegable duty of care to their employees to take reasonable care to avoid exposing them to unnecessary risk of injury. In defining the scope of that duty, Justice McCurdo applied the test set out by the majority in Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44, that the relevant duty of care is engaged if psychiatric injury to the particular employee is reasonably foreseeable.
“The Court accepted that Ms Eaton’s mental state visibly deteriorated in the period during which Ms Harrison was her manager and therefore that TriCare ought to have foreseen her psychiatric injury. Its subsequent failure to exercise reasonable care to avoid or minimise the risk of psychiatric injury, by failing to ensure that Ms Harrison not behave in a harassing or belittling manner, amounted to negligence.”
Justice McCurdo noted that while an employer does not have a duty to provide a happy workplace, it has a duty to take reasonable care to avoid a risk of psychiatric injury. Further, while being overworked would not in and of itself establish a breach of duty, in these circumstances, the increased hours worsened Ms Eaton’s stress.
Implications for employers
Employers have an obligation to ensure the physical and psychological safety of their employees under health and safety legislation. Employees are also protected under anti-bullying laws provided in the Fair Work Act 2009 (Cth).
Small to medium employers are particularly vulnerable due to a lack of expertise in HR and IR management, or the knowledge, skills and techniques to both reduce risk exposure and manage such matters effectively.
Preventive measures, such as workplace policies, must be put in place to educate and train employees to reduce the risk of them engaging in inappropriate behaviour.
A whistleblowing program is a valuable tool in an organisation’s ethics kit. It build’s trust with employees and sends a powerful message that these kinds of reports will be handled promptly, consistently and responsible action will be taken to prevent potential harm to employees.
1: Eaton v TriCare (Country) Pty Ltd  QCA 139 Fraser and Philip McMurdo JJA and Boddice J 3 June 2016