Contributory Negligence to Workplace Bullying not Founded Where Complaint Fails
Wednesday 5 February 2014 @ 9.51 a.m. | Industrial Law
A Victorian Supreme Court has found that a case for workplace bullying can be established even where the bullied employee had never made a formal complaint about the bullying during the course of employment.
The court found that the failure to make a formal complaint will only be a case for contributory negligence on the part of the employee where it can be proven that the complaint would definitely have stopped the bullying.
In the case of Willett v State of Victoria (No 2) [2013] VSCA 76, the employee joined the Victorian State Police force in 1998 and continued to distinguish herself as a highly competent police officer during her employment. According to the employee’s evidence, two days after starting at the CIU she was informed by another detective that her direct superior, a Detective Sergeant, believed “she had f**d the boss to get her job”. When she announced that she was pregnant, she was again questioned in the same vein as earlier. She was asked to voluntarily resign and when she refused, the Detective Sergeant began labelling her as the “Black Widow.”
The Court heard that the alleged workplace bullying also involved the assignment of menial tasks inconsistent with the employee’s rank, and the Detective Sergeant’s choice to make three offensive phone calls to her while she was on parental leave. In September 2005, she was given the opportunity to make a formal complaint from the Senior Sergeant, but she declined for the reason that it would make her life harder.
At trial, the jury had found contributory negligence on the part of the employee because she had allowed the bullying to occur. However, the Supreme Court rejected this finding stating that while her actions had been negligent, it was not contributory negligence. The Court concluded that there was no evidence to support the finding that, if the employee had made a subsequent complaint, the bullying would have stopped in time for her to avoid injury.
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