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 PearceView letter in a scalable popup window
A 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.
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.
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  NSWSC 144 (15 March 2006).
Thank you again, John, for sharing your story and this legal case, much appreciated!