Bullying allegations unproven against employer

Robertson v State of Queensland [2020] QDC 185

JudgeBarlow QC DCJ

Delivered 6 August 2020

Background

The District Court of Queensland found in favour of an employer accused of badgering, bullying and mobbing (group bullying) an employee in the workplace.

The plaintiff, Ms Robertson, made a claim for damages, alleging she was badgered, bullied or mobbed over a period of time between 2011 and 2012 while working as a nurse at the Gold Coast Hospital (the defendant). The plaintiff alleged that as a result, she suffered a mental injury, namely chronic adjustment disorder with mixed anxiety and depressed mood.

The plaintiff alleged that between 2011 and 2012 there were 19 separate incidents and multiple other relevant events which caused her mental injury.

The majority of the alleged incidents involved the plaintiff’s employer – Gold Coast Hospital – having concerns over the plaintiff’s conduct and competence in her nursing role.

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.

Liability

Liability was in dispute.

Judgement/findings

In his judgement, Barlow QC carefully considered each of the 19 plus alleged separate incidents. His Honour highlighted two occasions where it could be said that the plaintiff was bullied by other staff. While the staff members’ conduct was inappropriate, it did not amount to bullying because the two incidents were isolated and separated by a long period of time (16 months).

His Honour stated that the staff “…did not persistently attack or otherwise treat Ms Robertson in a bullying manner. Therefore, they did not badger her. Although they no doubt discussed her frequently over the period concerned, I do not accept that they deliberately combined to harass her. “

This finding meant that the plaintiff had failed in her claim. Barlow QC went on to consider whether, if the plaintiff had been badgered, bullied or mobbed, the defendant owed her and breached the alleged duty of care and if so, whether that breach caused her injury.

Duty of care

The plaintiff alleged that the defendant owed her a duty of care to take reasonable steps to avoid causing her a mental injury. The plaintiff referenced three alternative occasions on which she alleged this duty of care arose.

One of the alleged occasions was on 19 December 2011 when the then Acting Nurse Unit Manager (NUM) called a meeting with the plaintiff. The plaintiff alleged that the NUM met to accuse her of making a medication error (later found to be untrue). The defendant’s evidence was that the purpose of the meeting was to discuss plaintiff’s medication administration generally, including the medication error allegation, along with the need for her to be on a performance improvement plan. The plaintiff claimed that during the meeting she told the NUM that she was not feeling supported by the other nursing staff which made her feel lonely.

Barlow QC held that at all times from 19 December 2011 onwards the defendant was entitled to review the plaintiff’s work practices to decide whether she was able to competently perform her employment duties. His Honour states that the defendant “…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, His Honour found that the defendant did not owe the alleged duty of care at any time.

Breach of duty

The plaintiff made several allegations of breach of duty, in particular, alleging that the defendant knew that the plaintiff felt she was being bullied and failed to prevent and protect her from such bullying in the workplace.

Barlow QC held that the defendant did not breach any duty of care it may have owed to the plaintiff, particularly as the plaintiff did not communicate or complain to anyone in the defendant’s employ that she was being bullied.

Causation

Barlow QC considered the question of causation. His Honour 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”.

It was stated that the stressors that the plaintiff experienced in her workplace arose from the deterioration in her relationships with other nursing staff and the performance improvement plan she was placed on. It was these events that caused her injury, not the alleged bullying.

Discussion / implications

This judgment is a timely reminder to employers that:

1. If an employee suffers mental injury during the course of their employment, this does not automatically mean that the employer owed a duty to the employee to avoid causing a mental injury.
2. The court will determine whether the risk of injury to the employee was reasonably foreseeable by the employer. If the risk was foreseeable then a duty of care will likely have been owed.
3. It is not reasonably foreseeable that an employee will suffer a mental injury purely because he/she has been exposed to stressful situations in the workplace. A court will consider what, if any, notice the employee gave the employer to suggest he/she was at risk of suffering a mental injury.