Alleged bullies – Do “duty of care” obligations still apply?

A court ruling has highlighted the requirement for employers to maintain their duty of care to those employees who have had allegations of bullying made against them before, during and after a bullying investigation has taken place.
 
The case involved four employees from an office of Disability Services Queensland who had allegations of bullying and harassment made against them in 2008 and again in 2009. The claims were supported by the Union, however a subsequent investigation conducted by the employer could not substantiate the allegations made against the four employees.
 
The four employees each subsequently brought claims against the employer alleging they were owed a duty of care by the employer both when the initial complaints were made and during the investigation. It was alleged that the lack of support provided and the subsequent breach of this duty led to psychiatric problems.
 
While the District Court initially dismissed the claims, the Queensland Court of Appeal found that a duty of care did exist for three out of four of these cases. In the final judgement made in the case, Justice Dalton found that “There is no doubt that in appropriate circumstances an employer will owe a duty of care to take reasonable steps to prevent psychiatric injury to an employee”. It was held that the duty will occur if a psychiatric injury is reasonably foreseeable in each employee’s case.
 
As complaints were made in 2008 and then again in 2009, it was held that the employer should have been aware there would be a substantial investigation conducted. The employer was found to have breached their duty of care by failing to provide any support except for offering a free departmental counselling service and removing certain employees from their roles. It was held that the employer should have recognised that each employee may suffer harm due to support not having been offered to the four employees.
 
During the investigation process, there were some instances in which the four employees were required to work alongside the complainants, and were subject to picketing by the union. Some of the four employees were found to have been segregated and isolated from their colleagues in the workplace.
 
In all cases however, there was insufficient evidence to support that any of the employer’s breaches of duty led to psychiatric injury being suffered.
 
For the employee for whom no duty was owed, the court found that they did not lose their “substantiative position” during the investigation. Rather they were moved to a new role which they had requested and was somewhat insulated from the workplace conflict.
 
This set the one employee apart from the remaining three employees who had to spend considerable time working in stressful conditions with those who had lodged serious claims against them.

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