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Investigations into workplace bullying: It’s NOT the Employee’s choice

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By James Sanders, Lawyer, MST Lawyers

In the recent Supreme Court decision of Swan v Monash Law Book Co-Operative [2013] a part-time employee was awarded $300,000 for pain and suffering for a severe psychological condition she developed as a result of being subject to sustained workplace bullying.

Ms Swan was a part-time sales assistant at the Legibook store on Monash University’s Clayton campus between 2002 and 2007. The court found that the store’s Manager had subjected her to intimidation, bullying and harassment.

In 2003, Ms Swan took her concerns in relation to the bullying to the Board of Directors which was made up of current law students and ex-students now practicing as lawyers. The Board decided that it would develop policies in regards to workplace bullying and harassment, and produce employment contracts for both positions to clear any ambiguity in relation to their roles. These documents were still being developed in 2007.

At the outset the Board acknowledged that this type of behaviour was not acceptable, and flagged the possibility of a WorkCover claim being made in relation to any injury sustained by the sales assistant. Mr Somers, the Chairman of the Board, contacted Ms Swan to indicate the Board would investigate her complaints. Ms Swan made it clear to the Board that this behaviour was only present during the busy sale periods at the start of each semester and that the Manager’s behaviour had recently improved. Ms Swan told the Board that she ‘felt she was able to work with it’ and asked the Board to ‘sit on it at this stage and take the comments on notice’.

In July 2007 the sales assistant called Mr Somers again to inform him that after 5 years she had ‘had enough’ of the Manager’s bullying behaviour.

Justice Dixon found that was inappropriate for Legibook, in their capacity as a reasonable employer, to rely upon the decision of the sales assistant not to take action against the Manager. He went on to say that the periods without incident could not ‘eradicate or alleviate’ the concerns the Board had raised over WorkCover claims in 2003.

The court awarded $292,554.38 in pecuniary losses and a further $300,000 in damages for pain and suffering.

For further information on workplace bullying laws, please contact our experienced Workplace Relations team on (03) 8540 0200.