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Australian cases 1
This page illustrates the Australian bullying regime by
highlighting some litigation.
It covers -
Cox v NSW
Cox v State of New South Wales [2007] NSWSC 471
- here
Cox is the leading case on school responsibility for bullying
of children by their peers, with educational institutions
and authorities owing a duty of care to students.
The NSW Supreme Court awarded $220,000 for pain and suffering
to 18-year-old Benjamin Cox after finding that the NSW
state Education Department had failed in its duty of care
to deal with ongoing bullying. Cox's mother Angela had
sued NSW on his behalf, claiming bullying, which started
in infants school and continued in later years, had resulted
in her son having little education and being unable to
work.
The court heard that, while at Woodberry Public School
in 1994 and 195, Cox was hit and choked by an older boy
(an attack recognised through compensation from the Victims
Compensation Tribunal). His mother reported the events
- one Education Dept representative reportedly commented
that “bullying builds character and that he thought
it was a good thing that Ben got bullied" - but the
bullying continued, with the perpetrator reportedly stating
"It was funny how the police came to my house. And
if they come again, I’ll threaten to kill you".
By the time he started high school Cox reportedly thought
school a "scary proposition" and became a recluse.
"He didn't like crowds, he didn't like teachers,
didn't like the work". He had only completed schooling
up until the end of year 7. An attempt at home schooling
had failed. His mother said he rarely went out, had no
friends, "just locks himself in his room playing
PlayStation games", and was unable to hold down a
job.
Simpson J commented that the school's responses to Mrs
Cox’s repeated reports were dismally inadequate.
This
was not a case of attempting to prevent something which
may or may not have occurred; what was called for were
steps that would eradicate a known course of conduct.
She
concluded that Cox's
adolescence
has been all but destroyed; his adulthood will not be
any better. He will never know the satisfaction of employment.
He will suffer anxiety and depression, almost certainly,
for the rest of his life. He is unlikely to form any
relationships, romantic or platonic. He has no friends
and is unlikely to make any.
NSW
was ordered to pay Cox's legal costs.
Dillon v Arnotts Biscuits
Dillon v Arnotts Biscuits Ltd AIRC No. 31680
of 1997 (10 September 1998)
Dillon provides an example of constructive dismissal attributable
to bullying.
Ms Dillon was employed by Arnotts Biscuits Limited as
a packer, ie on the production line rather than in an
office. She had faced ongoing bullying by her supervisor,
"to the point of reducing her to tears". After
returning to the factory from a work-related illness she
was assigned to an isolated workstation by herself, facing
a blank wall with her back to her fellow employees. The
supervisor was said to have singled her for ‘special
treatment’ to “toughen her up”.
In response to what the Australian Industrial Relations
Commission described as "incessant bullying"
Dillon resigned. The Commission found that the bullying
of a amounted to "constructive dismissal" (ie
she had been treated in a way that forced her to resign
rather than being directly fired).
Arnotts was ordered to reinstate Dillon, who recommenced
work and was reimbursed for income lost through the constructive
dismissal.
Maddaford v Coleman
Inspector Maddaford v Coleman (NSW) Pty Ltd &
Or [2004] NSWIRComm 317 - here
Maddaford illustrates that employers can be held
liable where the risk of bullying is foreseeable. It is
insufficient to react to bullying: employers need to be
proactive in preventing bullying in order to ensure a
safe and healthy working environment (and thus meet obligations
under workplace OH&S legislation noted in the preceding
page).
The case involved bullying of the 16 year old timber joinery
worker Dwayne Doyle (referred to earlier in this note)
whose co-workers had wrapped him in plastic, stuffed his
mouth with sawdust and glue, and whirled him round on
a trolley. He claimed that bullying exacerbated his existing
health problems and, perhaps unsurprisingly, had not found
it a pleasurable experience.
The full New South Wales Industrial Relations Commission
confirmed an earlier decision by the NSW Chief Industrial
Magistrate that the Coleman company had breached its duty
under s 8 of the Occupational Health and Safety Act
2000 (NSW) in failing to ensure a healthy and safe
workplace. Coleman's two directors and factory foreman
were found to be personally liable under s 26 of that
Act, even though not directly involved in the incident.
The Magistrate had found that Coleman had breached its
s 8 duty when 16 year old Dwayne had been subjected to
a 30-minute 'initiation' bullying by colleagues, including
being wrapped in clingwrap from neck to toe, threatened
with violence, spun on a trolley, covered in sawdust and
glue, and repeatedly having sawdust forced into his mouth
between bouts of having a fire hose squirted into his
mouth. Doyle was an asthmatic. He claimed that the mistreatment
left him with increased respiratory difficulties and damaged
his mental health.
In deciding appeals by the Directors and by NSW Workcover
the Commission's Full Bench indicated that substantial
penalties are needed to force directors to give workplace
bullying appropriate attention, commenting that an employer
and its directors have a duty to prevent employees from
"having fun at the expense of another person"
and that courts are unsympathetic to claims that bullying
involves "harmless pranks or workplace high-jinks".
WorkCover had earlier prosecuted all the employees involved
in the initiation: all were convicted, with one being
fined $500.
Batton v NSW Police Service
Barry Michael Batton v NSW Police Service
(1999) 46 AILR 5-229 NSWIRC (IRC 448 of 1997) here
Batton is another example of constructive dismissal, ie
where there is no firing but the employee is forced out
of the job because of bullying.
In this instance Batton, a detective within the NSW Police
Service, was bullied for first refusing a bribe from
a fellow detective and then reporting that offer to his
superiors. If only all officers were that honest and met
their obligations under the Police Act 1990 (NSW).
The harassment was not addressed by his superiors. It
resulted in the detective being incapacitated for work
due to a psychiatric disorder, compelling him to seek
retirement on medical grounds. He took action under the
unfair dismissals provision of the Industrial Relations
Act 1996 (NSW).
The NSW Industrial Relations Court held that the disorder
was attributable to the bullying and to failure by the
Police Service to deal with the bribe and subsequent bullying.
The Service's inactivity as Batton's employer was held
to have forced him to resign.
WorkSafe Victoria v Ballarat Radio
WorkSafe Victoria v Ballarat Radio Pty Ltd -
Ballarat Magistrate's Court (August 2004)
The Radio Ballarat case illustrates action by a state
occupational health & safety agency (WorkSafe Victoria)
in addressing bullying independent of litigation by a
bully's target. That action is significant as a demonstration
that government still has a role in the 'age of the internet
(contrary to claims that it will inevitably and quickly
"evaporate") and because many targets are reluctant
to initiate litigation, given financial and emotional
costs.
The target in Ballarat Radio had been verbally abused
by Radio announcer Reginald Mowat had subjected fellow
employees to verbal abuse and threats of violence while
at work on over ten occasions in 2002 and 2003. He had
also physically assaulted a colleague. Ballarat Magistrate
James Mornane said the "explosive manner" of
Mowat in dealing with other employees was "completely
inappropriate".
Mornane commented that the incidents were serious, repetitive
and extended over a period of time. They resulted in abused
colleagues taking time off, being afraid and not wanting
to come to work. In one instance a female employee a woman
would not leave her office if Mowat was nearby.
Mowat was convicted and fined $10,000 in the Magistrates'
Court on two counts relating to intimidating co-workers
and for failing to take care for the health and safety
of others in the workplace. He was ordered to pay $1,700
costs. The broadcasting company was subsequently fined
$25,000 for failing to provide a safe workplace, and $25,000
for failing to provide instruction, training and supervision
in relation to bullying. It was also ordered to pay costs
of $5,000.
McKenna v State of Victoria
McKenna v State of Victoria [1998] VADT 83 (1
June 1998) - here
McKenna involved a sexual harassment claim by Senior Constable
Narelle McKenna under the Equal Opportunities Act
(Vic), with the target of bullying being awarded $125,000
in general damages for distress, psychological injuryand
hurt feelings.
The Victorian Anti Discrimination Tribunal found that
McKenna's employer (the Victoria Police) and three of
its employees had been responsible for recurrent discrimination
and that she had been sexually harassed by a supervisor.
The Tribunal considered that bullying was particularly
egregious after she complained of harassment. Consistent
with the catalogue of abuses highlighted earlier in this
note, McKenna had been singled out by senior officers
who placed memoranda with negative remarks about her honesty
on her personnel file, upgraded a disciplinary sanction
without notice and took extraordinary disciplinary action
despite knowledge that she had complained about disciplinary
abuses.
The unfortunate police officer suffered a breakdown but
did not resign. The Tribunal's report was scathing, noting
that the bullying was "initiated, supported or endorsed
at high levels" and that the Victoria Police had
clearly been reluctant over several years to meaningfully
implement its own anti-bullying and equal opportunity
policy.
The Tribunal's decision was upheld by the Victorian Supreme
Court in State of Victoria v McKenna [1999] VSC
310.
Blenner-Hassett
v Murray Goulburn Co-operative
Blenner-Hassett v Murray Goulburn Co-operative Pty
Limited & Ors - 1999 Victoria County Court (2651/96-Morwell)
(PDF)
Blenner-Hassett illustrates both the nastiness of workplace
initiation (aka hazing) and use of common law tort claims.
As discussed earlier in this note, teenager Kevin Blenner-Hassett,
an apprentice fitter & turner in the Murray Goulburn
Co-Op's workshops, underwent bullying himself and witnessed
others being bullied. Gebhardt J commented that "In
essence he maintains that his life has been inexorably
skewed and damaged because of workplace bullying",
which amounted to "unacceptable workplace intimidation
and bastardization" over several years.
The target was stripped, painted, threatened with rape,
recurrently taunted and had the dubious pleasure of seeing
a work experience employee suspended over a fire. Almost
a decade later he took court action.
An expert witness commented that
it's a shocking thing to do to a person, a human being,
at any age, but being an adolescent is a very vulnerable
time because that is the time when the sense of identity
is being formed and so the sense of identity of who
you are, getting back to your point before, about the
sense of self, is being formed from a child, the child
sense of identity which is different to the adult sense
of identity, so it's a transition time and therefore
a very vulnerable time in the sense of development of
sense of self and sense of identity. So, to traumatise
a person at that age, has devastating - potentially
devastating consequences which it has done in this case,
in my opinion.
The
Court accepted arguments that the bullying had indeed
traumatised the target and that his employer had been
negligent in failing to prevent the torment. It was unimpressed
by suggestions that the abuse was "training"
or harmless "pranks". It awarded
$350,000 damages, discussed in the following page.
Arnold
v Midwest Radio
Arnold v Midwest Radio Pty Limited
Marilyn Arnold (no relation to this site's author) worked
at the Townsville Independent News, a Queensland
newspaper owned by regional broadcaster Midwest Radio.
The Qld Equal Opportunity Commission found in 1999 that
her manager had recurrently targeted her, although other
staff were also bullied in a workplace that illustrated
many of examples of what not to do to employees.
His language was "aggressive, bullying, abusive,
belittling and sarcastic". He threatened staff with
dismissal (including announcements that people were on
a 'third & final warning' although no previous warning
had been given), played people off against each other
(eg falsely telling one of her colleagues that she had
made a sexual harassment complaint), used homophobic language
in publicly humiliating a gay employee by dumping his
desk-top on the floor, and inviting staff into his office
where they were given the opportunity of sacking each
other. He refused Arnold compassionate leave to see a
dying relative because it was "too close to Christmas".
She left her job and experienced health problems. She
took action under the Workplace Health & Safety
Act (Qld), rather than the weaker discrimination
legislation, arguing that the employer had failed to provide
a safe system of work and thereby had breached of its
statutory duty under that Act. Breach had resulted in
her suffering serious psychological injury, with Midwest
unreasonably exposing her to forseeable risk.
During initial litigation the Court was persuaded by that
argument, finding that although the manager was entitled
to use a "strong hand" in a competitive environment
his practice was unacceptable and was causally related
to her illness. She was awarded damages of $572,512, including
general damages of $65,000, future economic loss of $160,000,
$120,000 past carer costs in the past and future carer
costs of $100,000.
In Midwest Radio Ltd v Arnold [1999] QCA 20 -
here
- the Queensland Court of Appeal agreed that she was unlikely
to work again but overturned the decision on the basis
that she had not satisfied the Court that there had been
a breach of the duty of care to avoid psychological injury
and that such injury was a reasonably foreseeable consequence
of the employer's conduct.
It noted expert evidence that an "average person
of normal fortitude" would have suffered anxiety
disorder for up to a year because of the bullying, rather
than her major depressive disorder. That difference was
significant because liability for psychiatric illness
was held to exist if it was reasonably foreseeable that
a 'normal person' would be so affected.
next page (Australian
bullying cases 2)
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