Wearne v State of Victoria [2017] VSC 25

Dixon J

The plaintiff was employed by the defendant as a case manager responsible for youth welfare in the criminal justice system. Between February 2007 and November 2008, the plaintiff claimed she was exposed to bullying and harassment by a supervisor and as such exacerbating her pre-existing chronic adjustment disorder with mixed anxiety and depression. The plaintiff ceased working in November 2008 and had not undertaken paid employment since that time.

Importantly, the defendant employer knew of the plaintiff’s psychiatric vulnerability when she returned to work in 2007 and further that as matters developed that the poor relationship with her supervisor was a causing considerable anxiety and stress. Despite finding that the plaintiff was not bullied or harassed, Dixon J found for the plaintiff because of the employer’s knowledge and that a reasonable option to avoid the injury was available.

The issues for Dixon J were, inter alia:

  1. the duty of care owed by the defendant, whether it was breached and causation;
  2. Damages

The definition of workplace bullying raised two threshold issues, namely:

  1. Was there unreasonable behaviour toward the plaintiff which could victimise, humiliate, undermine or threaten; and
  2. If there was, did it occur repeatedly?

Conduct constituting bullying and/or harassment

Dixon J was not persuaded that the supervisor’s managerial conduct toward the plaintiff constituted bullying, humiliation and/or harassment. In reaching this conclusion, His Honour stated:

[179] However, Ms Skerry’s behaviour with regard to correcting the plaintiff’s reports was not unreasonable in the relevant sense as it was expected by her employer and did not go so far as to contribute to a pattern of workplace bullying. Rather, the persistent report writing dispute was one aspect of a broader interpersonal conflict…

As to conducting feedback sessions in the open plan office, His Honour stated that this behaviour would victimise a complainant, however it did not amount to bullying as it was not conducted repeatedly. His Honour went on to further state:

[208] … when viewed as a whole, Ms Skerry’s behaviour was not sufficiently repetitive to constitute bullying of the plaintiff. Ms Skerry was at times overly harsh and insensitive towards the plaintiff, who was experiencing a high level of stress that did not entirely flow from Ms Skerry’s supervision. The work-related stress and anxiety experienced by the plaintiff was also due to the changing nature of her role, the prolonged and uncertain nature of her application for reclassification to the higher CPW-3 level, and the generally stricter standards expected in the Preston office. I am satisfied that while Ms Skerry’s management style may have been somewhat rigid and inflexible, she did not set out deliberately to demean, belittle or harass the plaintiff.

Duty of care, breach and causation

In summing up the duty the defendant owed to the plaintiff, Dixon J stated:

[229] … the Department’s duty to take care to ameliorate the risk of psychiatric injury in the course of her employment, particularly in the manner of supervision of her duties and her exposure to stress and anxiety through work tasks and interactions was enlivened in the claim period. There was nothing in the terms of her employment that precluded that duty of care from arising. The content of the duty was to prevent the plaintiff from suffering a psychological injury by taking such steps as were able to be taken in the circumstances.

As to breach, His Honour explained:

[255] I am satisfied that moving the plaintiff to a different team, namely that supervised by Mr Bowers, was an available and appropriate response that could have readily been adopted by Ms Thompson at least six months earlier, that is, in or around April 2008, than it ultimately belatedly was

[271] … if reassignment to a new team was impractical for any reason, then a specialist position as proposed by Dr Webster, or a re-assignment to the defendant’s head office in a project role … could have been considered. I infer that such options, which Dr Webster suggested were well within the opportunities available in a large organisation

Dixon J was satisfied at [284] – [287] that the failure of the defendant to take reasonable measures breached the duty of care owed to the plaintiff and as such caused the psychological injuries.

Quantum

His Honour assessed damages at $625,345.00, including $210,000.00 for pain and suffering and loss of amenities (general damages).

David Cormack – Brisbane Barrister & Mediator

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