By Gaby Grammeno Contributor
The worker alleged she’d suffered a psychological injury due to bullying and harassment by other employees – and one in particular – at Mt Arthur coal mine, where she was employed from 2012 until May 2016, driving dump trucks.
She said her co-worker, another dump truck driver, ‘would glare, ridicule and laugh at her, heckle her, call her a “dog” and “growl” at her’, as well as stalking her on a few occasions outside work time. She said these incidents occurred on more than 150 occasions between 2012 and early 2016.
The co-worker also engaged in work practices that endangered her. One very grave example of that was in 2015, when the co-worker flooded a ramp down which the worker had to drive. Overwatering the ramp – making it slippery and unsafe for the large dump truck – could have had serious consequences for the safety of the worker and another employee.
The worker alleged that at various times from 2014 to 2016 she’d reported the bullying and harassment to employees and representatives of the company operating the coal mine, to her union representative and also to one of the two labour hire firms that had employed her for part of the time she was working at the mine.
In May 2016, she took sick leave and eventually left work in August 2016 because of the adverse psychological effects of the bullying and harassment, which had begun soon after she started work at Mt Arthur. She believed the harassment was deliberate and intended to denigrate and harm her.
Two psychiatrists concurred in the diagnosis that she was suffering from a major depressive disorder caused by bullying. A third diagnosed PTSD as a consequence of the workplace harassment.
Her symptoms worsened, and she was treated in hospital for her PTSD, panic attacks, self-harming, suicidal thoughts and incapacity to manage the activities of daily living, such as washing and feeding herself.
It was not until May 2021, five years later, that the worker realised she had an arguable case to claim damages for the employer’s negligence in allowing the bullying and harassment to go on.
The lapse of time raised a problem for her in that under the Workers Compensation Act 1987 (NSW), she had to begin court proceedings for damages within three years of the date of the injury, unless she had the consent of the court in which the proceedings were to be heard.
IN THE NSW SUPREME COURT
The present hearing concerned the worker’s application for an extension of time to bring proceedings against her three former employers – Mt Arthur Coal and two labour hire companies – all of whom opposed granting her an extension of time to make her claim.
The Court considered evidence regarding the worker’s distress, anxiety and fear of the co-worker because of the harassment, and the way her anxiety spread to other areas of her life. Also highlighted was the extent to which the worker’s psychological condition interfered with her understanding of her situation and the ramifications of the advice she’d received in the years after she left work.
Her former employers recognised that the bullying had caused her psychological injuries, but denied liability for the actions of the alleged bully, who, they claimed, was acting ‘on a frolic of her own’.
NSW Supreme Court Associate Justice Joanne Harrison said that whether the co-worker was ‘acting on a frolic of her own is a matter that can only be determined at trial’.
NON-DELEGABLE DUTY OF CARE
Associate Justice Harrison said that each employer had a non-delegable duty of care for the worker. Liability for psychological injury caused by bullying includes vicarious liability for the behaviour of employees. Her former employers could not disclaim responsibility for the bullying they knew was taking place – they owed the worker a duty of care in relation to the conduct of her co-worker, the alleged bully.
No effective action had been taken by anyone to stop the bullying. On one occasion, a supervisor who was aware of the problem met with the woman and her co-worker but had merely told them to ‘act civil at work and get along’. Another supervisor had said the harassment had to stop, but did nothing more.
The evidence indicated that none of the employers took any steps such as investigating the complaints formally, confronting the bully, or offering counselling or other assistance to the worker before she went out on sick leave.
The two labour hire firms had ‘never made any attempt to comply with their non-delegable duties of care’. Neither of them had ever attended the Mt Arthur site to supervise the woman’s work or to check on her wellbeing.
EXTENSION OF TIME
Associate Justice Harrison formed the view that because of the woman’s work-related psychological injuries, she had been unable to properly understand the advice she was given, including when she signed an ‘election not to proceed to common law proceedings’.
In such circumstances it was reasonable to suspend the limitation period while she was ‘substantially impeded in dealing with those practical matters that need to be attended to for the action to be brought in time’.
Though all the defendants may suffer some presumptive prejudice, it would not amount to actual or significant prejudice, in the light of available records and documentation.
The Court found that the worker had given a satisfactory explanation for delay and established that she had an arguable case against all the defendants, who would receive a fair trial.
The worker was granted an extension of time to commence proceedings.
WHAT IT MEANS FOR EMPLOYERS
Complaints of bullying should always be managed properly to ensure the risks of bullying are effectively managed and to ensure that any potential harm to people in the workplace is prevented and/or minimised.
Employers also need to be aware that they can be held liable for workers who bully other workers.
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