Published: 28 June 2019
Author: Creon Coolahan
Workplace bullying, and when does it create a right to Common Law damages against an employer?
What is workplace bullying?
Workplace bullying takes many forms, and the law has for some time struggled to adopt a definition of what sorts of behaviour constitute workplace bullying. There is no statutory definition of workplace bullying in the Victorian Workers’ Compensation legislation, however WorkSafe Victoria issued a Guidance Note in February 2003 in an effort to clarify the subject matter for employers and employees alike.
The Guidance Note was referred to by the Victorian Court of Appeal in the decision of Brown v Maurice Blackburn Cashman  VSCA 2013 122. In that decision Justice Osborn JA directly quoted the definition of workplace bullying as defined in the Guidance Note as follows:-
“Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.
Within this definition:
Unreasonable behaviour means behaviour that a reasonable person, having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten.
Behaviour includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening.
Risk to health and safety includes a risk to the mental or physical health of the employee.”
Justice Osborn JA observed that the definition raised two threshold questions which would need to be answered in the affirmative in order for the subject behaviour to constitute workplace bullying as defined:
“1. Was there unreasonable behaviour directed towards [the plaintiff], i.e. behaviour that a reasonable person having regard to all the circumstances would expect to victimise, humiliate, undermine or threaten a person; and
2. If there was, did it occur repeatedly?”
Establishing an entitlement to Common Law damages for workplace bullying
Even if workplace bullying has occurred, and even if the employer has been found to have breached the Victorian Occupational Health and Safety Act 2004 by not providing a safe workplace, this does not mean that an employer will be held liable to pay compensation in the form of Common Law damages to an employee who is the victim of such behaviour.
Showing that there has been behaviour which fulfils the definition of workplace bullying as defined by the Guidance Note will, however, go some distance to entitling a victim to compensation in the form of weekly payments of compensation, medical expenses, and (albeit rarely) an impairment benefit under the “no-fault” provisions of the WorkCover legislation in Victoria.
To gain access to the Common Law damages aspect of the Victorian WorkCover scheme, a worker injured by reason of workplace bullying must firstly show that they have suffered a “serious injury”. In the context of a psychological injury, “serious injury” means a “permanent severe mental or permanent severe behavioural disturbance or disorder”.
But showing that your injuries are sufficiently “serious” is not enough on its own.
So, when will an employer be regarded as liable to pay Common Law damages to a victim of workplace bullying?
In the 2018 Victorian Supreme Court decision of Hingst v Construction Engineering (Aust) Pty. Ltd.  VSC 136 Justice Zammit made the following statement regarding when an employer shall be liable to an employee in a negligence claim in the context of workplace bullying:-
“An employer will be prima facie liable if it knew, or ought to have known, that an employee was at risk of being bullied and did not take steps to ameliorate that risk. An employer will also be vicariously liable for the negligent acts or omissions of its employees in the scope of their employment. Self-evidently, this may include bullying another employee, where it gives rise to a reasonably foreseeable and recognisable psychiatric injury.”
Showing that a psychiatric injury is “reasonably foreseeable” often boils down to a question of fact and the individual circumstances of the case.
If you have been a victim of workplace bullying please contact our WorkCover team to discuss your potential avenues to compensation.