I was sceptical when an article with a similar headline and a suspicious publication date (April 1st) pedalled its way through social media. In response, I did precisely what one would expect of a mature, inquisitive lawyer- I conducted a search of the Australasian Legal Information Institute, keyword: fart. My search returned a surprising number of results, most of which were unfortunate misprints; like the case of Donohue v Wong Sau, where the court assessed whether the appellant ‘was a constituent fart [sic] of the Australian Community’, and London Bank v Kendall, an ‘appeal on question of fart [sic]’. There, amongst the search results, I found the recent case of Hignst v Construction Engineering– an 18-day trial in which the Supreme Court dismissed a $1.8M compensation claim by an aggrieved employee who alleged, inter alia, that his employer would ‘lift his bum and fart on him’. In all seriousness, this judgement deserves the attention of every employer, not for its absurdity, but for the useful summation of the law of workplace bullying provided by Zammit J.
The Law of Bullying
Employers are under a duty to take reasonable care to avoid causing employees recognisable psychiatric injury. This obligation is vested at common law and finds expression (and modification) in contracts and statutes. At the heart of an employer’s duty is the obligation to provide a safe workplace and a safe system of work. Stemming from that obligation is the need to provide ‘competent employees’, and the law requires that competent employees (and employers) do not bully, harass, abuse, or intimidate their co-workers.
Per Zammit J, ‘an employer who knew, or ought to have known, that an employee was at risk of being bullied, and who did not take steps to ameliorate that risk, will be prima facie liable for that employee.’.
What Constitutes Workplace Bullying?
There is no statutory definition of what constitutes bullying in the workplace. Instead, the court has quoted Worksafe Victoria’s guidance note on the Prevention of Bullying and Violence at Work (February 2003) as follows:
Workplace bullying is a 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.
As Zammit J explained, citing Osborn in Brown v Maurice Blackburn Cashman, the definition [above] gives rise to two threshold questions:
- 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,
- If there was, did it occur repeatedly?
Zammit J further explained that in order to make out a bullying claim at common law, the plaintiff must show ‘on the balance of probabilities that there was an established pattern of behaviour in the workplace, which was repeated and unreasonable, and which a reasonable person in all the circumstances of the case would expect to give rise to a recognisable psychiatric illness.’.
Zammit J concluded that the employer’s flatulating, although ‘humiliating and disgusting’, did not cause the plaintiff to suffer a recognisable psychiatric injury and as such it did not constitute workplace bullying.
Lessons for Employers
Workplace bullying is far harder to detect than the schoolyard variety. There is a dangerous intersection between pranks committed in the spirit of humour and bullying. Although policing this intersection may seem uncomfortable, it is the employer who will be liable if the line is crossed. Contact the employment lawyers at Rankin & Co. to review your workplace bullying policy.
This article is provided for general interest purposes only and does not constitute legal advice. For tailored legal advice, contact Rankin & Co. on 0477 004 437.