Why you should NEVER fail to act on a bullying complaint
As an employer, you must take reasonable care to avoid the risk that an employee will suffer a psychiatric injury as a result of their working environment, e.g. due to bullying or stress.
This duty arises under the common law of negligence. Negligence is a failure to take reasonable care to avoid causing injury to a person to whom you owe a duty of care.
Charles Power explains how to meet your obligations under this duty, and takes you through a case in which an employer was found liable under the common law of negligence for failing to minimise psychiatric injury caused to an employee as a result of workplace bullying.
Your duty under the common law of negligence is very similar to the statutory duties imposed on you as an employer under work health and safety legislation.
Under this duty, you are liable unless you do what is reasonable to reduce or eliminate the risk of your employee suffering a psychiatric injury. However, the duty will only arise if a reasonable person in your position would have foreseen that your actions (or inactions) would lead to a risk of the employee (or class of employees which includes the employee) suffering an injury that is recognisable, and not far-fetched or fanciful.
What is reasonable?
If a duty of care arises, you need to do what is reasonable to reduce or eliminate the risk. What is reasonable depends on:
- the magnitude of the risk;
- the probability of its occurrence; and
- the expense, difficulty and inconvenience of taking alleviating action.
What is recognisable?
Medical developments mean that we now know more about when emotional disturbance can trigger, or develop into, a recognisable psychiatric injury. For example, it is now general knowledge that some recognisable psychiatric illnesses may be triggered by workplace stress.
What is foreseeable?
The ability to reasonably foresee the risk is not just about predictability. That is, you don’t need to recognise that all employees are at risk of psychiatric injury from work-related stress just because you know it is possible for this stress to result in injury.
Whether psychiatric injury to a particular employee suffering from stress is reasonably foreseeable depends on:
- the nature and extent of the work being done by the particular employee; and
- signs given by the employee concerned.
If you engage an employee to perform duties, you are entitled to assume that the employee considers that they are able to do the job, unless there are evident signs warning of the possibility of psychiatric injury, e.g.
- explicit warnings given by the employee; or
- frequent or prolonged sick leave absences.
In Swan v Monash Law Book Co-operative (2013), the employer was found to be liable under the common law of negligence for its failure to intervene early to avoid or limit damage and injury caused to a bookshop employee from sustained workplace bullying.
The Court noted victims of bullying or stress often do not appreciate that they are being injured. They are aware of symptoms, but make a conscious decision to cope. As a result, they don’t often alert their employers to the risk of harm until the cumulative effect of bullying and harassment causes a breakdown.
Yet if the employer in the Swan case had acted earlier, and appropriately, when it first received the bullying complaint, the employee would not have suffered any significant psychological injury. Although the employee making the complaint did not indicate a particular risk to health from the bullying or stress, the Court considered the employee had given the employer sufficient warning of the impending risk.
The Court was highly critical of the employer’s response. When the employer received the employee’s complaint, it simply asked the employee what she wanted to do about it. It said it would put in place position descriptions, employment contracts and behaviour polices ‚ ¨ but ultimately did not get around to doing this.
Once risk of injury to an employee is reasonably foreseeable, you cannot avoid responsibility for controlling the risk to the employee, and you can’t simply ask the employee what they think should be done.
In this case, the Court found the employer was negligent due to the absence of:
- job descriptions setting out employer’s expectations regarding duties;
- workplace behaviour policies setting out the employer’s expectations regarding workplace conduct;
- training about appropriate behaviour and how to respond to complaints;
- an investigation once the complaint was made;
- a formal system for bullying victims to seek help;
- informal counselling of the bully ‚ ¨ he was not told the conduct would not be tolerated;
- an assessment of risk to the victim;
- monitoring of ongoing behaviour;
- policy or process;
- a systematic response to complaint ‚ ¨ the employer simply assumed that, because there were no further complaints, everything was okay; and
- a safe return to work procedure.
The Court ordered the employer to pay the employee damages totalling nearly $600,000, with half for pain and suffering.
Sourced from Workplace Bulletin – October 2014