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Australian cases 2
This page illustrates the Australian bullying regime by
highlighting some litigation.
It covers -
 Emonson
v Trustees of the Christian Brothers
In 2001 18 year old Aaron Emonson was awarded $60,000
by a Victorian County Court after the jury heard that
he had endured three years of bullying at his former school,
St Patrick's College, Ballarat.
Emonson's solicitor noted
that bullying was often a daily occurrence and violent.
Emonson had
been belted on the arm with a piece of wood in a woodwork
class; there'd been another occasion where he'd been
hosed down with a water hose, and had been required
to remain at school for the balance of that day in saturated
clothing; there'd been another incident where he had
been choked with a length of material from carpet cord
and throughout that period the parents had made various
requests of the school to deal with it and the response
was far less than adequate. ...
He had not progressed well at school and as a result
he ceased his schooling at the end of Year 10.
One of the alleged bullies is reported as stating that
Emonson's treatment was no different to what most St Patrick's
students experienced. "Everyone was doing it to everyone
... We weren't singling Aaron out."
The
court found that the school had breached its duty of care,
having been recurrently alerted by Emonson's parents.
Emonson sued the school for physical and mental injuries
caused by the bullying.
The hearing featured an email by a St Patrick's teacher
in 1998 detailing problems with bullying in the school
and complaining of difficulties in addressing that abuse.
Naidu v Group 4 Securitas
Naidu v Group 4 Securitas Pty Ltd & Anor
[2005] NSWSC 618 - here
Naidu is a leading case regarding the vicarious liability
of employers regarding bullying, ie they have legal responsibility
for the deeds and misdeeds of their employees (a matter
illustrated through Inspector Maddaford v Coleman).
Naidu was a private
security executive who sustained substantial psychiatric
injuries from over five years of bullying while employed
by Group 4 Securitas, which provided security services
to News Ltd - particularly to its subsidiary Cumberland
Newspapers. That bullying, by a News executive rather
than by Group 4, included racist and sexist vilification.
It occurred both inside and outside the work environment.
The employer was found to be directly and vicariously
liable for psychiatric injuries that the Court was told
prevent Naidu from working for the rest of his life and
will require future hospitalisation.
He was awarded $2 million damages, including lost salary
of $70,000 a year until the age of 65, general damages
of $200,000 and exemplary damages against News Ltd of
$150,000.
Webb v State of Queensland
Webb v State of Queensland [2006] QADT 8 (23
March 2006) (txt)
Webb illustrates questions about corporate liability,
suggesting that it is insufficient for an employer to
rely on promulgation of policies and provision of formal
complaint mechanisms in a world where some people may
be too embarrassed or intimidated to make a formal complaint
and where policies are seen to be disregarded.
Rosalie Webb initiated action under the Anti-Discrimination
Act 1991 (Qld), alleging that she was sexually harassed
by a male co-worker during her employment with Queensland
Health, a government entity with a sexual harassment policy
and a complaints procedure. Her colleague allegedly engaged
in unwanted (and unauthorised) touching, referred to her
using sexual epithets, sent her unwanted pornographic
email, and made comments about his sex life and her sex
life.
Ms Webb notified her employer of her concerns in 2001
and 2002 through informal comments to her supervisor and
manager, being told that she should speak to her colleague
directly. Nothing could be done unless she lodged a formal
complaint.
Qld Health defended its inactivity by claiming there was
no vicarious liability for the bullying because it had
taken "all reasonable steps" to prevent harassment
from occurring in the workplace. The Tribunal disagreed,
noting that employers must be proactive, with action taken
prior to the making of a formal complaint (ie to prevent
bullying) rather than merely in response to a specific
complaint. Qld Health had failed to take appropriate action
when it became informally aware of the harassment in 2001.
The Tribunal noted questions about fairness in the handling
of complaints but concluded that under the legislation
a formal complaint was not a precondition for preventing
bullying. It was insufficient for the employer to tell
Ms Webb to ask another employee to stop bullying.
Qld Health was ordered to pay damages of $14,665 to Ms
Webb.
Nikolich
v Goldman Sachs JBWere
Nikolich
v Goldman Sachs J B Were Services Pty Ltd [2006]
FCA 784 - here
Peter Nikolich, a private investment adviser, complained
to his employer, Goldman Sachs J B Were, about the behaviour
of his immediate boss. He said that he was subjected to
a series of malicious personal attacks, verbal abuse and
insults, and his clients had been reallocated to other
colleagues. He went on sick leave and was then told that
Goldman considered that his employment was over.
In subsequent litigation court he successfully argued
that his employer's failure to deal with the complaint
quickly and effectively breached Goldman's own policies
and procedures, constituting a breach of his employment
contract. He sought substantial damages for psychological
illness caused by bullying.
The Court agreed that there had been bullying and a breach
of contract. It noted that when becoming a Goldman employee
he had been required to sight and formally acknowledge
the Working with Us policy document that featured
provisions regarding harassment, integrity, safety and
grievance procedures.
Wilcox J held that the employer's policy manual (including
Working With Us) formed part of the contract
and that Goldman had failed to comply with the provision
promising to "take every practicable step" to
protect his "health and safety".
Although damages are ordinarily not recoverable for disappointment
and distress, there is an exception for psychiatric illness
as personal injury. In this instances such damages were
not too remote (ie the illness was attributable to the
bullying and its mishandling in breach of Goldman's policy
manual). Nikolich was accordingly awarded some $500,000
in damages.
In 2007 the Full Court of the Federal Court in Goldman
Sachs JB Were Services Pty Ltd v Nikolich [2007]
FCAFC
120 upheld that decision, including the award plus
interest. It awarded Nikolich 90% of his costs regarding
the appeal but overturned the original costs order on
the basis of restrictions in the Workplace Relations
Act 1996 (Cth).
Hellsing
v British Aerospace
Stig Hakan Hellsing v British Aerospace Australia
Ltd [2001] ACTSC 98 (17 October 2001) - here
Hellsing involved bullying that resulted in another target
suffering from a major depressive illness.
Technician Stig Hellsing, employed by British Aerospace
at the Tidbinbilla deep space tracking station in the
ACT, had been bullied by a drunken night-shift supervisor
for several years during the early 1990s. The station's
management were aware of the environment but failed to
take action. He gave up work in 1995, suffering the effects
of stress, after he had been forced to move to a day shift
(at a much lower salary) following difficulties with a
redundancy requested as a way of dealing with the bullying.
British Aerospace as employer admitted liability for Hellsing's
condition and did not contest his evidence. He was awarded
$342,989, with suggestions that the amount might have
been much higher if the Court had accepted particular
claims about future earnings.
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