Victorian Supreme Court awards $625K, finds a failure to act breached duty of care

Many managers struggle to respond adequately when an employee makes complaints about another’s conduct. This failure can be costly for all the individuals involved and ultimately for the organisation.

A recent decision by the Supreme Court of Victoria awarding an employee $625,000 highlights an employer’s duty of care in responding to an employee’s complaints. Justice John Dixon found the Department of Human Services (Department) failed to take reasonable action and did not discharge the standard of care expected of a prudent employer in the circumstances. An appropriate response by a reasonable employer to complaints about a deteriorating supervisory relationship, as explained by Dr Webster, would have been to properly understand the underlying causes before selecting strategies to minimise damage and harm.

Justice Dixon found the Department was aware of the employee’s psychiatric vulnerability, but left her under the supervision of an abrasive manager. Despite rejecting the employee’s claim of bullying, Justice Dixon found three managers ignored the employee’s repeated complaints and requests for assistance, and but for this failure to act, the employee would not have suffered a breakdown.

Significantly, the judgement identifies a wide range of actions, including moving the plaintiff, pro-actively providing workplace training and support, changing the working conditions and pro-actively educating supervisors that the Department could (and should) have implemented at various stages of the employee’s employment but which it failed to adopt.

Observations

There was nothing in this matter that was particularly outstanding or unusual. Many of you will have heard stories of toxic workplaces where either no action is taken by the organisation or there is a subtle ‘blame the parties involved’ approach.

The conduct complained of was found NOT to be Bullying. This is not surprising; definitively labelling behaviour as bullying can be difficult, as these situations are complex, nuanced and fraught. In the end the label doesn’t matter. Workplace conflict can significantly impact on both the organisation and the individuals involved if the conflict is not appropriately dealt with.

Neuroscience has found that we respond neurologically to conduct that we perceive to be unfair, whether we label the actions as bullying or harassment or discrimination or whatever[1]. And this neurological response can be played out in a variety of physical and psychological reactions and actions which are generally damaging for an individual’s health and well-being and for their employer.

Importantly, the judgment confirms that organisations have a responsibility to respond appropriately, within the organisation’s capability, to complaints about abrasive conduct. This requires a commitment from management to engage appropriately, to identify and explain what is happening and then to select a range of intervention strategies and actions that meet the needs of the individuals involved and the organisation.

Is there the expertise and skill in the marketplace to do this? Anecdotal evidence is that managers often struggle when confronted with complaints about conduct and are frequently disappointed when they seek help from HR practitioners.  Matching intervention strategies with individual expectations and organisational context requires both psychological and organisational knowledge, plus the confidence to intervene.

Wearne v State of Victoria [2017] VSC 25 (8 February 2017)

Penny Webster

Penny Webster, PhD, FRI, CAHRI

Dr Webster is a consultant, practitioner and academic in organisational complaints and workplace conflict. She provides Expert Opinion and regularly lectures at a number of Universities; she is a member of several tribunals and has held statutory conciliator roles in WorkCover and residential tenancies. Dr Webster will be speaking at the 2017 No Harm Conference, Brisbane 26-27 June,  where she will introduce a training course ‘ Managing Abrasive Behaviour’ and speak about common mistakes in handling workplace bullying complaints. She can be contacted via www.wilsonandwebster.com.au

[1] Webster, P. 2010 Why are expectations of grievance systems not met? Thesis Series, The University of Melbourne. ISBN 978192775123