Workplace Harassment or Bullying? What Steps Should You be Taking?

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The recent Supreme Court of Queensland case of Govier v Unitingcare Community [2017] QCA 12 addresses two primary issues in relation to holding employers responsible for psychiatric injuries sustained by employees in the workplace. This article will focus primarily on what key steps an employee needs to take before the occurrence of an incident which causes a psychiatric injury, particularly in relation to workplace harassment scenarios. This was one of two central issues in Govier.

Facts of the Case

The appellant, Ms Govier, was a carer employed by Unitingcare Community (‘the respondent’). In 2009 she was charged with the care of Tara[1]. Ms Govier was employed at the same time as MD,[2] a disability worker for Tara also. Both women were supervised by Mr Blackett.

During a shift cross over in 2009, after 10 months of working with Tara, MD violently attacked Ms Govier. Ms Govier was hospitalised as a result. Ms Govier feared she would die during the attack, and subsequently developed a recognised psychiatric injury in the form of post-traumatic stress disorder and a depressive disorder.

In the weeks following the attack, the respondent sent two letters to Ms Govier, who had been unable to attend work due to hospitalisation for angina. The first letter required Ms Govier’s presence at work to discuss the altercation; the second letter stated that in light of the fact Ms Govier had ‘refused’ to attend investigatory meetings, a preliminary finding had been made that Ms Govier had breached the employee code of conduct, made ‘unnecessary and unwelcome contact with MD’ and engaged in violent behaviour. The second letter required Ms Govier to provide explanation as to why she should not be terminated. These letters furthered Ms Govier’s psychiatric injury.

Issues

There were two central enquiries in the case. Namely:

  • Did the respondent breach its duty of care to provide a safe environment for Ms Govier by rostering Ms Govier and MD so that they met on the same shift?; and
  • Did the respondent employer breach a duty of care owed to Ms Govier by the sending of the two letters. Did the defendant owe a duty of care in this instance? For the outcome of this issue, please click here.

Breach of Duty of Care – Was there a Foreseeable Risk of Harm?

Ms Govier claimed that the trial judge erred in finding that there was no foreseeable risk of harm that Ms Govier would suffer a psychiatric injury as the result of an attack by MD. This was formed on the basis that:

  • Ms Govier had informed her superior that there had been four incidents in which MD had intimidated and physically assaulted her;
  • Ms Govier had written a letter to her employer indicating her fear of working with MD;
  • The respondent ought to have foreseen a real risk of Ms Govier suffering a physical assault from MD if both women continued to have contact;
  • The respondent should have reprimanded, counselled or dismissed MD;
  • It was not too inconvenient or difficult for the respondent to enforce a separation of MD.

The Supreme Court, however, rejected these arguments on all counts.

Where Ms Govier Failed

  • Ms Govier failed to prove that she reported the incidents to her superior

Firstly, the Court was critical that when describing the alleged events that took place, Ms Govier did not do so in a way that indicated she was fearful of MD at the time they took place. The primary judge had noted that Ms Govier ‘left the impression as she have her evidence that even she did not know how to interpret the four episodes she so sketchily described in her evidence’.

Secondly, the Court also noted that Ms Govier had not mentioned these incidents in a letter that she wrote to her supervisor at a later date. She also did not mention the episodes in her recorded telephone conversation on 26 February 2010. Ms Govier also did not mention the episodes to medical experts who saw her, nor did she mention them in her evidence before lunch on the first day of trial.

As such, the Court dismissed Ms Govier’s evidence of the incidents as unreliable.

  • Ms Govier’s letter did not indicate a risk that MD would attack her

The letter that Ms Govier wrote to her employer did not indicate a risk that MD would attack her, but rather was critical of ‘petty and unprofessional’ behaviour. The letter also did not imply that Ms Govier ‘feared for her own mental health if the respondent did not change their shifts to prevent them crossing over.’ The primary Judge held, and the Court agreed, that the letter could be characterised as ‘making accusations almost exclusively of emotional aggression.’ This letter, therefore, did not put the respondent on notice that Ms Govier could suffer a potential psychiatric injury if she was not kept separate from MD. As such the respondent could not have reasonably foreseen an attack which would cause a psychiatric injury to Ms Govier.

  • There was no foreseeable risk that failing to minimise contact between Ms Govier and MD would result in Ms Govier sustaining a psychiatric injury

The Court agreed with the primary Judge that as at the date of the assault, in light of the above circumstances, there was no foreseeable risk of harm that failing to minimise contact between the women would result in a psychiatric injury.

  • There was no proof that reprimanding or counselling MD would have prevented MD from assaulting Ms Govier

The Court held that MD’s behaviour was irrational and impulsive it was difficult to see how reprimanding or counselling MD would have prevented the attack.

  • The difficulty in removing a carer did not outweigh the ‘risk’ of keeping both carers working with Tara

The inconvenience of removing MD or Ms Govier as carer for Tara had to be assessed in relation to the risk associated with keeping the two women working together. As this risk could reasonably have been determined as low, it was reasonable for the respondent to not remove either worker from caring for Tara. This is because removing a carer can often cause distress to the client, there were periods of notification that had to be adhered to and staff meetings had to take place.

As such, the Court held that the respondent had not breached its duty of care.

Lessons

Ms Govier failed to establish a breach of duty of care. This was because Ms Govier was unable to establish that her employer ought to have foreseen a real risk of harm that MD might attack her. As this risk was determined as low, the respondent’s lack of action was deemed to be reasonable when Ms Govier complained that inadequate steps had been taken to separate her and MD.

The lesson to be learnt from this aspect of the case is that employees who fear for their safety must accurately document and raise these concerns with employers, most effectively in written form. As noted above, however, this must be in a manner which is more than merely complaining of petty or unprofessional behaviour.

[1] The client’s name was changed for anonymity.

[2] Assailant’s name was changed for anonymity.

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Written by Eduardo Cruz (Senior Associate)