John McPhilbin, an admirable injured worker and our star contributor, has been pondering why Mr Pearce had such an aversion addressing workcover bullying issues Mr Shoebridge raised on John’s behalf last year. John – rightly- believes that WorkCover cannot control bullying within its own organisation and that his case would undoubtedly have opened a can of worms and set a precedent, opening the doors to some major lawsuits!
WorkCover can’t control bullying within its own ranks never mind keeping an eye on hostile insurers
This is just a theory – but I think it holds some merit, says John McPhilbin. I’ve been pondering why Mr Pearce had such an aversion to addressing issues Mr Shoebridge raised on my behalf last year (see letter below).
John McPhilbin’s issues were raised in a letter by Mr Shoebridge to Mr Pearce
View letter in a scalable popup windowA bullying case involving News Ltd
A case involving News Ltd should highlight the important role and function WorkCover has in protecting injured workers from hostile insurers.
Anti-bullying laws should apply. But here is the problem - WorkCover are responsible for investigating violations and then proceeding with prosecutions. Insurers are agents (subcontractors) for WorkCover.
If WorkCover investigate bullying insurers and proceed with a prosecution, they would actually be prosecuting themselves. Because, under law, employers who employ contractors are ultimately responsible for the behaviour of those contractors.
Here’s a classic example – News Limited along with their security sub-contractor were hit with major penalties for failing to prevent workplace bullying and the subsequent damage.
16 June 2004
Employer found liable for extreme bullying
A single judge of the New South Wales Supreme Court awarded almost $2 million dollars in damages against an employer whose employee was found to have bullied the employee of another employer.
Damages against the employer of the bullied employee are yet to be determined.
Implications for employers
This decision reinforces the non delegable duty an employer owes to its employees to ensure that they are provided with a safe workplace and a safe system of work. It also demonstrates that an employer may be vicariously liable for the at-work conduct of its employees, even when the conduct is directed to an employee of another employer.
Furthermore, the decision highlights how company policies about workplace discrimination and harassment may be incorporated into employment contracts for the benefit of employees. Also, in the absence of such policies, the decision demonstrates the courts are willing to imply terms regarding safe workplace practices into employment contracts.
Finally, the case shows that failing to make it clear that workplace bullying and inappropriate behaviour is unacceptable and can be extremely costly.
Background
Mr Naidu was employed as a security guard with Group 4 Securitas Pty Ltd from 1992 to 1997. Group 4 provided security services to Nationwide News Limited. Mr Naidu was engaged in providing security services to News on behalf of Group 4 at News’ premises. His direct supervisor (C) was an employee of News.
During his employment, Mr Naidu was continuously subjected to harassment, duress, racial and sexual abuse, humiliation, unreasonable workloads and pressure, and threats of violence and financial harm by C. As a result, Mr Naidu suffered serious psychiatric injury, namely post-traumatic stress disorder and major depression.
Upon learning of C’s conduct, News terminated C’s employment.
Mr Naidu started proceedings against Group 4 and News. He alleged negligence and breach of his employment contract arising from their failures to prevent C’s conduct and to provide Mr Naidu with a safe workplace and safe system of work.
Decision
The court held that both Group 4 and News were negligent and that Group 4 was also liable for breach of contract.
In coming to these conclusions, the court found:
- Group 4, as Mr Naidu’s employer, owed him a duty of care to exercise reasonable care for his safety, including the provision of a safe place of work and a safe system of work.
- Group 4′s duty to Mr Naidu could
- not be delegated to News, notwithstanding that his direct supervisor was a News’ employee.
- An employer has a duty by virtue of an implied term in the contract of employment to protect all employees from racial or personal vilification occurring during the course of employment. This is implicit in the duty to provide a safe place and system of work. By virtue of Group 4′s policy of prohibiting personal vilification and systems designed to deal with its occurrence, such arrangements were part of group 4′s contract of employment with Mr Naidu.
- Group 4 should have been sufficiently aware of C’s relationship with the Mr Naidu and had it been so, it would have discovered C’s conduct and his relationship.
- In placing Mr Naidu under C’s direction, Group 4 accepted responsibility for the way in which C supervised Mr Naidu. It was therefore vicariously liable for C’s conduct.
- As C’s employer, News was vicariously liable for C’s conduct towards Mr Naidu. However, as News was not Mr Naidu’s employer, it was not liable for breach of contract.
Damages to be awarded against Group 4 have yet to be determined. In addition, Mr Naidu was awarded indemnity costs against Group 4 and News.
Naidu v Group 4 Securitas Pty Ltd & Anor [2006] NSWSC 144 (15 March 2006).
Thank you again, John, for sharing your story and this legal case, much appreciated!
Shortlink: http://aworkcovervictimsdiary.com/?p=7636
Like I said – I was only pondering, however, since I’ve been engaged in this blog and heard so many stories I had a ‘ahaaaa’! moment. I am hoping that my efforts, along with many others, will open this can of worms.
News Ltd got hammered for their failures to ensure the health and safety of employees of a so-called reputable security company they employed as contractors. As this case demonstrates – see no evil, hear no evil – is not a credible defense.
WORKCOVER employ insurers (in fact, I believe the whole process is driven by insurers) – the responsibility, therefore, is clearly with WORKCOVER to prevent insurers using bullying tactics.
Yes, I am going to run with this theory in my own case, and I hope I will get the backing from some heavy hitters interested in bringing the system to account.
It certainly is a process driven by the insurers, no matter how much spin the government applies to make it appear that it is in control.
The insurers meet with WorkCover NSW on a monthly basis to discuss and drive reform issues. They also strategise on particularly difficult — or high-profile cases — at these meetings.
Further, there is an incestuous relationship between the employees of the insurers and the upper levels of WorkCover NSW. In effect, they are all one big happy family.
What has occured is this: agency capture has occurred. The insurers have become too big and too powerful for even the government to control (without large reform). The agency that is meant to be regulating simply cannot (or chooses not to) do its job in the manner the community expects of it. The tail wagging the dog, so to speak.
Look at what’s happened in the last few days. The government bestows a position on the WorkCover board to Freehills’ CEO. This is despicable behaviour on behalf of the O’Farrell government. What was the selection process? Who were the other candidates? Why were these chosen over other candidates?
Hi None
Brilliant and succinct!
“What has occured is this: agency capture has occurred. The insurers have become too big and too powerful for even the government to control (without large reform). The agency that is meant to be regulating simply cannot (or chooses not to) do its job in the manner the community expects of it. The tail wagging the dog, so to speak.”
I’d like to see a huge wedge driven between this incestuous couple.
Well John there will be many that support you. What disgusts me the most is the failure of Unions (Generally) to act in relation to these issues. The Unions continually whinge about how they are losing members and spruik about how they advocate for Workers Rights etc but these terrible issues with injured workers never rates a mention.
They (the Unions their management not members) are all too busy organising their next conference where to hold it what to the menu is going to be and what drinks will be served. Look at what is happening at the HSU at the moment.
It is way past time the Unions back injured workers, their members and in particular this web site and the issues raised here. Govt’s whether it be NSW, VIC, SA Federal all need to be held to account.
These WorkCover / Safe systems need to be held to account, Governments will do nothing until Public Opinion changes and supports people on this site and the issues advocated. WorkCover their Insurers Agents and Employees should be sued but the Governments should be the Target as all of the above work as Agents, and the Laws of Agency should be used to hold the Govts to account.
I wish you well in your particular case and hope that we can bring all these issues to the fore in public debate.
Cheers Mate
@4Q2x
Thanks for your encouraging words.
I cannot for the life of me understand where unions have been all these years. I’ve spoken to so many so-called union members, and many who’ve been injured who feel abandoned. Very few people who claim to be proud members of their union.
Union leaders are very political animals who like feathering their own nests, it seems. As you say “They (the Unions their management not members) are all too busy organising their next conference where to hold it what to the menu is going to be and what drinks will be served. Look at what is happening at the HSU at the moment.”
This is a great shame – my own disappointment came after I spoke at a conference in 2004 for UNIONS NSW where I shared my story workplace bullying ( http://workers.labor.net.au/features/200410/b_tradeunion_summit.html ). So many members ( not officials) were warm and supportive (nurses, teachers, police etc) and all had their own stories to tell. That was the beginning and end of the so-called campaign.
Bullying in the public service has been rampant for years – and my guess is the failure of unions to address it arises out of a conflict of interest – unions represent those in senior positions who do the bullying as well as those in lower positions, who are often the targets. A strategic decision to ignore the issue seems to have been made – this is the only conclusion I can reach.
I simply don’t have any faith that they really care about their members enough to take a strong stance, especially where injured workers are concerned. The decline in memberships in recent years should give them a strong hint about their failures, but it doesn’t seem to be getting through.
I would like the opportunity to tell them myself, in the hope that it would knock some sense into them. Again, I won’t hold my breath.
Cheers
John Mc