top of page

Employer found not guilty of workplace bullying

In Robertson v State of Queensland [2020] QDC 185 a nurse working at Gold Coast Hospital made a claim for damages alleging she suffered a mental injury due to being bullied while working at the hospital.


The plaintiff alleged she was badgered, bullied, or mobbed in 19 separate incidents over a two-year period. She alleged that as a result, she suffered a mental injury, namely chronic adjustment disorder [ref 1] with mixed anxiety and depressed mood.


The majority of the allegations involved Gold Coast Hospital management and co-workers expressing concerns over the plaintiff’s conduct and competence in her nursing role.


In his judgement, Judge Barlow QC carefully considered each of the 19 incidents plus alleged separate incidents involving interactions between hospital staff and the plaintiff. While the judge noted that 2 of the 19 incidents could be said to have amounted to bullying by other staff, the two incidents were isolated and separated by a period of 16 months. From the evidence (or lack thereof), the judge did not accept that the accused staff persistently attacked or deliberately mistreated the plaintiff in a bullying manner.


Duty of care and breach of duty

The plaintiff alleged that her employer had a duty of care to take reasonable steps to avoid causing her a mental injury and that her employer breached that duty of care, which caused her injury. The plaintiff referenced three alternative occasions on which she alleged a failure of duty of care arose.


The judge reminded the plaintiff that the hospital (defendant) was entitled to review the plaintiff’s work practices to decide whether she was able to competently perform her employment duties.


Judge Barlow said that Gold Coast Hospital “…had no duty of care to take reasonable steps to avoid such an injury if it were to arise from its reasonable steps in investigating, assessing, educating and, where it considered it necessary, admonishing her where she did not perform her duties properly.”


Accordingly, the judge found that the defendant did not owe the alleged duty of care at any time.


The plaintiff also made several allegations that the hospital was in breach of duty for failing to prevent and protect her from such bullying in the workplace.


The judge learned that the plaintiff did not communicate or complain to anyone at the hospital that she was being bullied, so the judge was unable to establish that the hospital had thereby committed a breach of duty.


Conclusions

Judge Barlow stated that he was not satisfied “… that her illness was caused by the hospital’s alleged breaches of its alleged duty, rather than by the stresses she underwent at work that were not themselves breaches of duty.”  The judge acknowledged that the stressors on the plaintiff stemmed from the deterioration in her relationships with other nursing staff and the performance improvement plan she was placed on. The judge adjudicated that it was these events that caused her injury, not the alleged bullying.


Justice Barlow found in favour of Gold Coast Hospital, concluding that while some of the hospital staff members’ conduct was inappropriate, it did not amount to bullying, and that the hospital did not owe the alleged duty of care to take reasonable steps to avoid causing the worker a mental injury at any time.


The plaintiff then appealed Judge Barlow QC’s decision to the Court of Appeal division of the Supreme Court of Queensland. The Appeal was heard by Fraser JA, McMurdo JA and Henry J on 27 November 2020 with judgment being delivered on 7 May 2021 ordering that Ms Robertson’s appeal be dismissed.


Implications of this case

This judgment is a timely reminder to all organisations and their directors that under WHS Law:


  1. If a worker suffers mental injury during the course of their employment, this does not automatically mean that the PCBU owed a duty to the worker to avoid causing a mental injury.


  2. The court will determine whether the risk of injury to the employee was reasonably foreseeable by the PCBU. If the risk was foreseeable then a duty of care will likely have been owed. (For more information on what is a “reasonably foreseeable hazard” see Courtenell article https://www.courtenell.com.au/single-post/what-is-a-reasonably-foreseeable-hazard )


  3. It is not reasonably foreseeable that an employee will suffer a mental injury purely because they have been exposed to stressful situations in the workplace. A court will consider what, if any, notice the employee gave the employer to suggest they were at risk of suffering a mental injury.


2022 WHS Law amendments

While new amendments have been made to the Model WHS Laws covering psychosocial hazards and risks, including hazards and risks from workplace bullying, these amendments do not reduce or lessen the employer’s right to manage staff to perform their duties and enforce that they do their duties correctly, safely, and well. A management plan to assist a worker better do their job does not qualify as “bullying” if the practical management of that plan is “reasonable.”


For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066

 

Comments

Recent Posts
bottom of page