01 July 2013


In Swan v Monash Law Book Co-operative (t/as Legibook) [2013] VSC 326 the Supreme Court of Victoria has awarded $592,554 damages to a former retail sales assistant subjected to workplace bullying.

The applicant claimed that she had been subjected to sarcasm, hostility, rudeness, violent behaviour and threat of termination by a manager in the workplace. She alleged that the defendant's negligence caused psychological injury by exposing her to an unsafe workplace in which she was subject to that bullying, harassing, and intimidating conduct. She had for example allegedly needed to duck to avoid being struck on the head by a legal text book thrown at her by a Legibook manager.

The Court found that Legibook failed to properly define the relations between it and its employees and its employees inter se and articulate its expectations concerning conduct in the workplace between employees, by job descriptions, employment contracts and workplace behaviour policies.

Dixon J states that
On the basis of the findings that I have expressed above, I am satisfied that Mr Cowell engaged in an established pattern of workplace bullying as so described. He did so, particularly in the period from August 2002 to April 2003. I am satisfied that his behaviour during that period, as I have found it, would be expected by a reasonable person to humiliate, intimidate, undermine or threaten the plaintiff. The incidents of occupational violence were, from 2003, intermittently reinforced with an expectation that such violence might be repeated, engendered by other conduct that did not involve an immediate apprehension of physical violence throughout the period of the plaintiff’s employment by the defendant until August 2007. 
Although the pattern of Mr Cowell’s behaviour was episodic and, after 2003, not characterised by explicit incidents of occupational violence, his conduct characterised the work environment as one in which the plaintiff was subject to stress and emotional distress, humiliation and belittling conduct, intimidation and aggressive managerial direction. In a restricted and confined workplace environment, such behaviours imposed substantial, and significant, emotional stress and distress on the plaintiff. I find that Mr Cowell’s conduct in the workplace threatened to, and did, damage the mental health and wellbeing of the plaintiff throughout the course of her employment by the defendant. 
The Court went on
I am satisfied that the behaviour of [Legibook] from March 2003 through until August 2007 fell short of the expected standard of an employer in the following respects:
(a) The defendant failed to properly define the relations between it and its employees and its employees inter se and articulate its expectations concerning conduct in the workplace between employees, by job descriptions, employment contracts and workplace behaviour policies.
(b) It was immediately clear to the defendant in March 2003 that a want of written position descriptions, written employment contracts and workplace behaviour policies was contributing to the conflict between their two employees. The defendant’s ongoing failure to put proper job descriptions, employment contracts and workplace behaviour policies in place was never explained. That inexcusable and unjustified conduct breached its duty of care to the plaintiff.
(c) Further, the defendant’s failure to take those steps was exacerbated by its repeated misrepresentations to the plaintiff that employment contracts, written job descriptions and workplace behaviour policies were imminent.
(d) The board failed in 2003 to introduce defined procedures for complaints of inappropriate behaviour in the bookroom, or to appropriately train its employees and its own members to deal appropriately with such behaviour and complaints when it was occurring.
(e) It was inappropriate for the defendant, purporting to act as a reasonable employer, to rely on choices made by its employee as to the employer’s proper response to the employee’s complaint especially when such choices were, at least, induced by those misrepresentations. Seeking assurances from the plaintiff that she was happy with the board’s handling of her complaint in the circumstances constituted an inappropriate response.
(f) In considering the plaintiff’s complaint in March 2003, the board recognised that it had given no direction to Mr Cowell as to his dealings with the plaintiff and that this seemed to have led to Mr Cowell developing some rather arbitrary and brusque work practices in his dealing with her.
(g) The board recognised that Mr Cowell was keen to make a good impression upon it and that appropriate workplace conduct should form part of an employee assessment concerning Mr Cowell. Although conceptually appropriate, the board was negligent in failing to follow through with any employee assessment that included consideration of appropriate workplace conduct.
(h) When determining in 2003 that a formal warning to Mr Cowell was not appropriate, the board failed to give any consideration to informal responses, for example, a direct personal communication with Mr Cowell that was not put in the context of any complaint from the plaintiff, about the nature of workplace conduct, including the way its employees related to each other that the board expected at Legibook.
(i) A reasonable employer ought to have directly investigated what was occurring in the bookroom and intervened appropriately to deal with what had occurred. Dr Wyatt considered that April 2003 was the appropriate occasion for intervention by engaging a workplace mediator or conciliator like Mr Jensen.
(j) The defendant had no formal system enabling employees to seek the assistance of the employer when bullying conduct occurred. This was evidenced in a number of respects. There was no complaints mechanism or system. Although Mr Somers liaised with employees on behalf of the board, the system was ad hoc. Further, there was no evidence that Mr Somers had any relevant training or experience and the board’s response to the complaints in 2003 and 2005 supports the conclusion that he did not. Apart from the failure to conduct any formal investigation of the plaintiff’s complaint, there was, in 2003 and 2005, no informal investigation either. Similarly, the board gave no informal warning and there was no discussion, even at a general level, with Mr Cowell. Consequently, the board never made a simple clear statement to Mr Cowell that it would not tolerate behaviour in the bookroom of a character that could constitute workplace bullying. Mr Cowell never knew of the board’s attitude to conduct as described by the plaintiff, irrespective of any issue about whether such conduct had occurred, or might again occur.
(k) The board did not arrange for, or conduct for itself, any risk assessment, either generally or of the circumstances raised by the complaints in 2003 and 2005. The board failed to assess the risks that it identified in March 2003 could result in Workcover claims by the plaintiff. The board did not properly monitor, on an ongoing basis, the behaviour of its employees inter se. Its expressed intentions to ‘chat regularly’ with its employees resulted at best in occasional conduct mostly initiated by the plaintiff. This failure follows on its failure to implement any policy or process. In the relevant sense, that risk of injury to the plaintiff that the board identified was uncontrolled by it.
(l) A further consequence following on the absence of any policy or process concerning workplace conduct and behaviours was that Legibook’s response to the plaintiff’s complaints was inadequate, and its want of a complaint and grievance process permitted its inadequate response to fail all together, to slip away without appropriate resolution. Although the defendant submitted that the periods of no complaint, or of apparent calm in the workplace between complaints, were significant, I do not agree. To the extent that the submission was put to the existence of a duty, I have rejected it. The periods of apparent functionality in the bookroom did not eradicate or alleviate the risks that had been foreseen. When considering breach, a reasonable employer looking forward to identify what it should have done to avoid injury, having identified a risk, could not simply assume that a continuing absence of complaint, or renewed complaint, meant that the risk had abated. In this regard, the defendant is purporting to rely on aspects of its breach of duty - a want of risk assessment, follow-up procedures, and monitoring - to infer that the foreseen risk had resolved and its failure to take such actions was not in breach of its duty. I reject this contention. The absence of overt continuing behaviour, or complaint about behaviour, is not evidence that the risk of harm to the plaintiff’s mental health identified in March 2003 had abated, or could reasonably be considered by a prudent employer to have abated.
(m) A further aspect of the lack of proper policy and process was that Legibook had no safe return to work procedure. The plaintiff’s return to work process was not competently handled and will be further discussed below.
I am satisfied that the defendant failed to take reasonable care for the safety of the plaintiff, specifically in terms of her mental health, in these particular respects.