As 2018 commences, bullying has remained a major source of concern for small and large businesses alike. Employers have continued to become increasingly conscious of the impact and consequences of workplace bullying, this proving to be particularly so as social media increases accountability in the eyes of the public.

The recent matter of Amy Robinson v Lorna Jane [2017] QBC 266 (15/3507) (Lorna Jane Case) highlighted the ongoing importance of establishing and following proactive and appropriate procedures when instances of bullying arise. These procedures continue to prove instrumental in the successful defence of legal claims arising because of workplace bullying and harassment complaints.

In the Lorna Jane Case, Ms Robinson (the applicant) was a manager with Lorna Jane for several years who brought an action in negligence against the company for the conduct of her supervisor. The basis of the claim was that Ms Robinson was treated in a cold and hostile manner and was harassed on multiple occasions over social media throughout her employment with the company.

She also claimed that various remarks were made about her weight and that she was eventually placed on stress leave as a result. The applicant sought damages for psychiatric illness resulting from the harassment including the triggering of a pre-existing mixed personality disorder as well as a consequential loss of employment and employability.

The District Court of Queensland however, dismissed the claims that Lorna Jane was directly and vicariously liable for the psychiatric injury suffered because of the alleged bullying. Ms Robinson was found to be a ‘most unreliable witness’ and more importantly, the employer was found by his Honour to have taken appropriate steps in response to the inappropriate conduct of which it was aware.

Lorna Jane successfully showed they had conducted a satisfactory investigation, after which they had proceeded with disciplinary action against the supervisor including removing the supervisor from the store in question.

Ms Robinson was provided with an alternative supervisor whom she could report to and further, Lorna Jane made arrangements within the investigation to consult with Ms Robinson to both verify her account of events and determine the best course of action to resolve the issue.

This rapid and effective response proved essential for the Lorna Jane to defend the case.

What can you learn from this as an employer?

The Lorna Jane Case reaffirms the value of appropriate and well thought out policies and procedures. Such measures ensure your business is sufficiently equipped to handle and resolve incidents of workplace bullying and if necessary defend legal action arising from it.

There are some preventive measures employers should exercise to best protect themselves in the event of such a claim:

  1. All employers should establish and enforce policies pertaining to preventing workplace bullying, discrimination and harassment and have their managers trained in relation to these polices;
  2. The complaint should be formalised in writing and include a detailed description of the allegations;
  3. A thorough and comprehensive investigation should be conducted in the event that a complaint is made;
  4. The results of the investigation should be made available to the aggrieved employee; and
  5. If the aggrieved employee is not fit for work or expresses reservations about their capacity to continue to work because of the alleged misconduct, they should not be allowed to return to work until cleared to do so by a medical practitioner and with an accompanying certificate of fitness to work.

Do you need to improve your bullying policies and procedures to prevent bullying and harassment? Call us today on +61 (07) 3876 5111 to book a consultation.

Written by
Jonathan Mamaril
Principal
NB Lawyers – Lawyers for Employers
jonathanm@nb-lawyers.com.au
+61 (07) 3876 5111

www.lawyersforemployers.com.au

About the Author
Jonathan Mamaril is the principal and director of NB Lawyers, the lawyers for employers, and a specialist in employment law. Over the last ten years, Jonathan has helped hundreds of employers understand their legal requirements, mitigate risk and liability, protect their reputation and achieve their goals for business growth and expansion.

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