The plaintiff was employed by the defendant as its manager in the DFO Brisbane store. During the course of her employment, the plaintiff claimed that she was bullied by her supervisor, also employed by the defendant. The plaintiff claimed that the bullying caused the plaintiff a psychiatric injury and triggered her pre-existing mixed personality disorder.
As summarised by his Honour, the plaintiff’s submissions were, inter alia, that:
- The defendant was directly liable for the acts or omissions of its employee because it was on notice of the bullying behaviour;
- The defendant was vicariously liable for the acts or omissions of an employee during the course of her employment;
The plaintiff made further submissions in relation to breach and causation, however ultimately his Honour dismissed the claim as the plaintiff failed to establish that the defendant incurred liability.
“On notice” and directly liable
The plaintiff relied upon an email and a meeting which it alleged placed the defendant on notice of the offending employee’s behaviour and its effect on the plaintiff. Of the email, his Honour found that it did not put the defendant on notice:
 First, the email expressed (a) Maninnen’s opinion about the interaction between McCarthy and Ms Robinson, and (b) her conclusion that Ms Robinson had cried because of her treatment by McCarthy. No contextual background to that treatment was mentioned in the email. Absent context, Maninnen’s opinion and conclusion cannot be evaluated. The email was also not specific about the things that McCarthy allegedly did or when they occurred. That lack of specificity also results in the inability to evaluate whatever may have been alleged.
 Secondly, it was written by an unhappy employee who was resigning and who may have taken that opportunity to unfairly criticise someone (McCarthy) whom she did not like. That possibility cannot be overlooked.
 Thirdly, there are undoubtedly many reasons why an employee might “come to tears” after an interaction with a supervisor. Human experience shows that people react in many different ways to a given situation. It all depends upon the particular circumstances and people involved.
As to the meeting, his Honour found the plaintiff to be an unreliable witness with serious credibility issues, therefore accepting the evidence of Ms Perrin, the defendant’s national sales manager, that the meeting entailed discussion about concerns at the defendant’s store generally and did not encompass discussion in relation to the bullying, as claimed by the plaintiff.
As to whether the defendant was vicariously liable for the employee’s acts or omissions, his Honour stated:
 … the first step in this process is to identify the alleged “wrongful act”. The second step is then to determine if, in all of the relevant circumstances, the employer is vicariously liable for it.
The plaintiff submitted that the employee of the defendant referred to her as “cheap”, a “generator”, made comments in relation to the plaintiff’s weight and generally acted in a dismissive manner toward the plaintiff.
Dismissing these complaints and finding that the defendant was not vicariously liable, his Honour found that the role of the supervisor was to provide direction to the plaintiff in relation to the proper image the defendant sought to uphold. His Honour was not satisfied that the supervisor used the term “cheap” to refer to the plaintiff or that the term “generator” incurred liability for the defendant.
As to whether an employee’s Facebook posts could incur liability for the employer, his Honour stated:
 Applying Deatons v Flew, I am not satisfied that McCarthy’s posting of the Facebook entries were acts (a) done in the course of her employment or connected with her employment, or (b) done in furtherance of Lorna Jane’s interests or under its express or implied authority or as an incident to or in consequence of anything that she was employed to do, or (c) for which an employer may be liable because they were acts to which the ostensible performance of Lorna Jane’s work gave occasion, or (d) which were committed under cover of the authority that she was held out as possessing or of the position in which she was placed as a representative of Lorna Jane.
 Furthermore, when applying the relevant approach from the High Court’s most recent decision on this point—Prince Alfred College Inc v ADC  HCA 37; (2016) 258 CLR 134, I am not satisfied that McCarthy’s posting of the Facebook entries was done (a) in the apparent performance of her role as Ms Robinson’s supervisor, or (b) because of any special role that Lorna Jane had assigned to McCarthy which placed her in a position or gave her the occasion to take advantage of that by posting the offending Facebook entries.
And as to the alleged comments in relation to the plaintiff’s weight and general dismissive conduct, his Honour did not accept the plaintiff’s evidence, largely due to the plaintiff’s unreliability and credibility problems. His Honour noted, of the subjective nature of the complaints:
 … it would be necessary to examine the context and any other relevant issues to be able to form any view about the reasonableness or otherwise of all of McCarthy’s allegedly “dismissive” conduct towards Ms Robinson. Merely to describe something as “dismissive” is to state a subjective impression or a conclusion as a result of the contextual features involved.
 … To determine that, the occasion concerned and the factual background would need to be identified. Then the actual circumstances would need to be set out in an intelligible way. The same requirements would apply before reaching any conclusions about hand gestures or saying that one would deal with things later.
Given the credibility issues, his Honour found it not possible to reliably assess the plaintiff’s damages:
 The medical opinions discussed above show that Ms Robinson:
(a) was exaggerating her symptoms or being untruthful in her self-reporting to Dr Oertel and to Dr Chung;
(b) was unreliably and less-than-truthfully reporting her symptoms to Dr Garg;
(c) was overstating to Dr Arthur her symptoms and degree of impairment and understating her degree of functioning;
(d) never had a work-induced adjustment disorder; and
(e) suffers from a pre-existing mixed personality disorder which is unrelated to her work at Lorna Jane.
 I accept that evidence and find accordingly.
 In those circumstances, the following passage from the Court of Appeal’s decision in Collings v WCB  QCA 224 is apposite. McPherson JA (with whom Davies JA and Moynihan J agreed) said that:
“A plaintiff who is guilty of dishonesty or misstatements to his legal advisers, his medical consultants, and the court hearing his claim necessarily places himself in a difficult position if his deceit is discovered. It leaves the court with the impossible task of attempting to assess his true condition by reference, not to what he has said about it, but to what he and others might have said if he had told the truth.”
 Very recently, the Court of Appeal said that for the Collings principle to apply, each of two factors must be present: they are that (a) a plaintiff’s evidence is fabricated, and (b) the findings of credit led to a total rejection of the evidence supporting that claim: see Berhane v Woolworths Ltd  QCA 166, at .
 In my opinion, for the reasons set out previously, those factors exist in the present case: (a) Ms Robinson’s evidence at the trial and her statements to her medical consultants were (variously) unreliable, inconsistent, false, untruthful, exaggerated and/or lacking in credibility, and (b) that resulted in my rejecting the evidence supporting her claim. On that basis, I am satisfied that the Collings principle applies.
 McPherson JA emphasised the “impossible task” of attempting to assess such a plaintiff’s condition (and therefore the quantum of her damages) by reference to what she and others might have said if she had told the truth. That invites a search for any evidence which supports a credible claim that could have been made.
David Cormack – Brisbane Barrister & Mediator