A case involving ongoing managerial mistreatment of a
director of nursing (DON) by an area health service manager resulted in damages
of nearly $1.5 million awarded against the employer.
As his Honour Justice Henry noted in the 2017 state Supreme
Court decision “In an era when the potentially grave psychological harm done by
workplace harassment and bullying is well known, unjustified blaming,
humiliation, belittling, isolation, undermining and contemptuous disregard of
an employee… was conduct collectively raising a foreseeable and not
insignificant risk of psychiatric injury.”
This decision makes it clear that a reasonable employer
would be expected to take precautions to protect employees from such behaviour,
particularly by senior managers. As well as a stark illustration of the human
cost of managerial mistreatment, the case serves as a reminder to employers
that failing to prevent such behaviours can have significant financial
implications.
Failure to resolve
complaints
The court placed particular emphasis on the ongoing failure by
the DON’s manager (the CEO) to act to resolve a series of complaints of
bullying and harassment made against the DON by one of her team members. It was
accepted that the complaints were vexatious and without substance. Despite
knowing that the DON was distressed by the issue and concerned about the impact
of the complaints on her authority within the team, the CEO failed to take
steps either to investigate or dismiss the complaints.
This issue was one of a series of instances of ‘managerial
mistreatment’, and needs to be seen in that context. Nevertheless, it is
important recognition by the courts of the significant impact that poor
complaints handling can have on all those involved.
Abuses of authority
In considering the impact of the manager’s behaviour, the
judge noted that, while a single incident might not give rise to probable risk
of injury, the impact of accumulating and repeated episodes might well do so,
particularly when perpetrated by the same person. Further, the risk of injury
would be increased relative to the perpetrator’s position of authority over the
employee. In this instance “the fact that someone with a powerful influence
over the employee’s fate in the workplace is so targeting the employee will
obviously tend to have such a crushing impact upon the employee as to heighten
the risk of psychiatric injury”.
The importance of the “intrinsic power differential” is
significant given the entrenched hierarchical nature of many workplaces in the
health sector.
The importance of
raising concerns
This case highlights the importance of finding ways of
speaking out about concerns. Legally, the question of liability turns on
whether the injury was “reasonably foreseeable”. This case emphasises that the
test is not whether it was foreseeable that a person of reasonable fortitude
would have sustained such an injury, rather it was necessary to consider the
particular employee in question, and the signs given by them.
In this case, it was important that the CEO was aware that
the DON was concerned about the complaint against her. She had specifically
advised the CEO of ongoing performance management issues with this NUM. She had
explained that she believed the NUM was targeting her in response to a
performance report, and that she was feeling vulnerable about the situation and
concerned about her authority within the team.
Reasonable management behaviour
The decision provides some reflections on what might be
reasonable in terms of providing feedback. The court highlighted that an
employer’s duty to provide a safe system of work required that any correction
of staff must be justified and carried out in a way that it is not objectively
humiliating. The judge recognised that being corrected is a necessary element
of employment but “unjustified correction involving an intemperate tone or
language and carried out in front of others involves qualities which employees
of ordinary sensitivity will find humiliating.” Repeated and significant
humiliation, and unjustified blaming of the DON by the CEO, was a strong
feature in the facts of this case.
Damages
This decision also provides an illustration of the harm that
can be caused by ongoing exposure to managerial mistreatment. Once a highly
regarded, competent senior nurse and manager, the DON became unable to take on
any role involving people, conflict or decision-making. In discussions of
whether other roles might be suitable for the DON after her injury, the DON’s own
evidence is particularly poignant: “That position still has HR aspects and
management and is decision-making, and I’m flat out making a decision what to
wear.”
The employer’s failure to address the harmful workplace
situation, even after the DON went on sick leave is also significant. The
expert evidence indicated that, had a suitable alternative work option been
available, the DON was expected to recover from her injury. The fact that the
only option offered to her was to return to her previous role, under the same
manager, seems to have contributed further to the harm that she suffered.
The decision in this case, and the significant damages
awarded, highlights how important it is that employers not only have policies
in place regarding appropriate workplace behaviours, but that they ensure those
policies are followed by all employees, including managers. Failure to do so
may well result in the organisation being held responsible.
More information
Download our factsheet
on workplace bullying.
If you are being subjected to
bullying or harassment at work, you may be able to make a complaint to the Fair
Work Commission if you work for particular organisations (for example,
companies). Further information about your rights can be found at https://www.fwc.gov.au/
You can also contact our Medico-legal Advisory Service (MLAS) on 1800 128 268 for expert advice, 24/7 in emergencies.
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