The Victorian County Court recently ruled against a plaintiff (Melbourne dock worker) in a workplace bullying case. The plaintiff’s claim was brought in negligence and in contract. He says that in the course of his employment with the defendant (P&O Ports), and from approximately 2007 to 2012, he suffered mental injury due to the stresses and strains of being bullied and harassed at work and subjected to ostracism within the workplace by co-workers and management.
The plaintiff was known to be a stickler for safety and on average he would lodge 10 incident reports related to safety every day. The complainant alleged he was frequently referred to as “rat dog”, excluded and overlooked for promotion. The judge acknowledged that the plaintiff was “unpopular with certain co-workers.” The judge assessed that the plaintiff exhibited obsessional traits that were evident in listening to and observing him over the course of the trial. He was prone to hyperbole and to adopt heightened descriptions of treatment including having been “hunted down” in the workplace by fellow employees and by management. The judge found the plaintiff to not be a credible witness and on many occasions to make statements that were not true.
However, the judge accepted that the plaintiff had been called a dobber for “ardent advocacy” around safety issues. A colleague even referred to the plaintiff as a “f***king c***!”. His name and insulting remarks were found in graffiti in the men’s toilet, including imagery of a tombstone with his name beside it. On one occasion an unknown colleague defecated in the plaintiff’s boots.
The judge said, “A prohibition against bullying does not prevent bad language or even exclusionary behaviour among employees. However, it does prohibit repeated unreasonable behaviour that victimises, humiliates, undermines or threatens a person and where such behaviour can be objectively assessed as creating a risk to health and safety of the individual subjected to the impugned behaviour. Thus, for example, repeated bad language directed to an individual may in certain circumstances amount to bullying. In other cases, it will not.”
The judge found that there was not a pattern of unreasonable behaviours and therefore the bullying allegations were not substantiated and so the breach of contract and negligence claim were also not substantiated.
The Tasmanian Anti-Discrimination Commissioner believes that the federal religious discrimination bill is a “drastic departure” from state and Commonwealth statutes working together. The new federal bill would render many complaints under the Tasmanian Anti-Discrimination Act irrelevant or unusable. The bill threatens the consistent approach of state and federal legislation. The Commissioner specifically stated her view that “it is unjustifiable that a statement of belief retains priority over all discrimination laws.”
A food delivery driver claimed he was discriminated against for failing to check in with a QR code at an Adelaide sushi bar. The claim has been rejected by the South Australian Civil and Administrative Tribunal (SACAT). The claim was made against the sushi bar and Menulog that he was discriminated against by reason of disability. The businesses were not informed of the driver having any disabilities. Senior member of SACAT, Kathleen McEvoy, stated that “being tired and forgetful does not constitute a disability.” SACAT found no evidence that the man was subjected to any direct or indirect discrimination. The man merely believed that takeaway food was exempt from the management rules put in place for COVID-19.
In 2021 there were numerous protests to improve treatment of victims of sexual harassment and assault across the country. There have been calls to ban or limit the use of non-disclosure agreements (NDAs). The primary argument is that NDAs create a toxic culture of silence, allowing perpetrators to get away with their inappropriate behaviour. Professor McDonald, from Queensland University of Technology, spoke out on the matter, stating that “while conciliation can save parties the time, money and trauma of court proceedings, the trade-off is their silence.” A lawyer from Victorian Legal Aid, Melanie Schleiger, elaborated by saying that NDAs preclude employers giving bad references for employees that have been terminated for sexually inappropriate behaviour. This article articulates the rising number of organisations that are adopting perpetrator blacklists to address sexual harassment in the workplace.