David Hingst launched legal action against Construction Engineering Australia, where he was employed between May 2008 and April 2009.
In a case before the Supreme Court of Victoria, Mr Hingst claimed that the bullying he endured during his employment caused him to develop a number of injuries, both psychological and physical, including irritable bowel syndrome and fibromyalgia.
The Melbourne-headquartered business rejected the claims, and said that even if the alleged bullying had occurred, the illnesses for which Mr Hingst sought damages would not have resulted from the bullying.
“At the heart of the plaintiff’s case was an alleged ‘conspiracy’ between these three men to marginalise him and terminate his employment,” the court noted.
“The plaintiff alleged, in particular, that in the five to six weeks before his redundancy Mr Short repeatedly abused him over the telephone. The plaintiff claimed that Mr Short spoke to him in a loud, aggressive, threatening and inappropriate manner about his work performance. Mr Short allegedly told the plaintiff that he had ‘fucked up’, that ‘it can’t happen again’, that he was ‘not worth [his salary]’, that he was ‘not worth shit’, and that he ‘kept fucking up’.”
Yet the most unusual part of the claim was that his manager would deliberately “fart” on or near him, knowing the behaviour was offensive.
Mr Hinsgt sought $388,000 for “pain and suffering” and an additional $1,417,138 for “past and future economic loss”.
However the court found that Mr Hingst did not advise his manager or anyone else in the business that he was at risk of psychological injury, and that the two men had “ventilated” their dispute during working hours, as demonstrated by Mr Hingst calling his manager ‘Mr Stinky’. As such, both the bullying and unfair dismissal claims were thrown out.
“[Mr Hingst] has not established any negligence on the part of the defendant. He has failed to show that the defendant breached its duty to take reasonable care to avoid causing its employees a reasonably foreseeable and recognisable psychiatric injury,” the judge concluded.
“Mr Short did not bully or harass the plaintiff. Nor did any other employee at the defendant company. It follows that the plaintiff’s bullying claim must fail. The plaintiff’s unfair dismissal claim must also fail as his redundancy was genuine. Nor was the Deed signed under duress.”
The court noted that while “there is no statutory definition of what constitutes bullying in the workplace”, an accepted legal precedent defines the practice as “repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety”.
Similarly, unreasonable behaviour is accepted to be “behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten”.