Work–family conflict was not bullying


Work–family conflict was not bullying

A former partner at a prominent law firm alleged she suffered from depression and anxiety caused by workplace bullying; however, a court found on appeal that she had not been bullied.


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A former partner at a prominent law firm alleged she suffered from depression and anxiety caused by workplace bullying; however, a court found on appeal that she had not been bullied.

It had not been reasonably foreseeable to the law firm that the partner might suffer psychiatric injury as a result of stress at work until shortly before she resigned, and it had not breached its duty of care to her. The finding was confirmed on appeal.

[Full text of this case: B v Maurice Blackburn Cashman [2013] VSCA 122 (22 May 2013)]

Perception of bullying, harassment and being undermined

A salaried partner in a law firm, B, was an accredited family law specialist and recruited LF as a consultant in the family law department of the firm in 2000. They had been on friendly terms since law school and, when B became pregnant in 2002, LF took over 10 of her cases. Her baby arrived on 22 December 2002 — earlier than expected — and she had not had time to complete file notes on her cases.

Friction between B and LF erupted a number of times during 2003 and resulted in B leaving her employment in November. She sued the law firm in 2007 for damages, alleging that it was vicariously liable, since LF had systematically undermined, harassed and bullied her. As a result, she had suffered psychiatric injury; namely, an adjustment disorder with severe anxiety and depression, and had not been able to work since.
The year of conflict
Evidence in the County Court of Victoria revealed that in January 2003 LF had emailed B in a friendly way and encouraged her to enjoy motherhood and not worry about work. Later that month, however, she had emailed again, asking B to come to the office, without her baby, and complete file notes on the files LF had taken over when B had gone on maternity leave. B was shocked because of the change in tone and because her junior at work had dictated to her what to do. She felt she had been undermined and criticised, and perceived it as bullying.
B wanted to discuss her difficulties relating to LF with the managing partner. However, when they met for lunch in April 2003, he told her that LF was to be made a salaried partner in July that year. B did not feel she could raise her concerns in the circumstances.
B was due back from maternity leave on 5 May 2003. One of her matters was listed for a hearing on 6 May and she asked LF on 30 April to discuss the case with her in preparation. The latter said she was busy with other work. B then reported that domestic difficulties prevented her from attending the hearing. She expressed disappointment in LF, who she felt had deliberately created a crisis for her return to work. LF retaliated by email on 1 May, referring to her own disappointment because of the way B had left her files when going on maternity leave. The next day, however, LF phoned to apologise. Another partner attended the hearing instead, and the two women appeared to resolve their differences over lunch on 6 May.
The women had a minor misunderstanding around 26 to 27 June 2003. A month later, they had a more serious dispute about work allocation issues but patched it up after LF apologised with a bunch of flowers.
In early August 2003, an article was published at which B took offence. It made LF appear more senior than B and implied that LF had given B her job, although the reverse was the case. Then B claimed LF alleged that the other partners in the law firm wanted to play the two of them off against the other so that one of them would leave. LF was supposed to have said words to the effect that the war was on and it was a fight to their career death. LF denied this, but B insisted it was proof that LF had a motive for her harassment.
Later in August 2003, B sought a meeting with the managing partner to discuss the issues LF had with her. The three of them met on 10 September. Only administrative issues were raised. When the managing partner finally asked whether they wanted to raise other issues, LF said, ‘No’. B then also said, ‘No’. The managing partner assumed they had worked things out between them.
During September 2003, emails were exchanged between the three partners relating to what costs should be credited to LF for work done on B’s files during her maternity leave. On 23 September, B forwarded an email from LF to the managing partner, saying ‘This is the latest bullying email from [LF] to me’ about the costing of some of the files. She also said ‘I have had enough of this ongoing harassment and undermining of me. She is on a power trip and I cannot work with her like this. I am really stressed by this; it has been going on now since January’. The cost issue was quickly settled. LF said B had overreacted.
On 30 October 2003, the managing partner arranged to have lunch with B. She told him she and LF had not been speaking in five weeks, that her health was suffering and she had seen a doctor. That was the first time B had raised a health issue with the managing partner. He promptly set up a mediation meeting between the three of them on 7 November. LF spoke first, saying she and B had had their problems, including the file note issue, although it was already water under the bridge. There was no reason they could not continue to work together. B did not say anything at all but stood up and left the room. The mediation had failed.
The managing partner then met B on her own. She said she wanted to leave the firm in January 2004 and was only concerned about whether she would get redundancy pay.
Conclusion of County Court — no bullying
The County Court accepted the definition of bullying in a guidance note by WorkSafe Victoria as repeated, unreasonable behaviour directed toward an employee, which created a risk to health and safety.
Examining the factual circumstances around each alleged incident and disagreement, the court concluded that there had been no bullying. It had not been reasonably foreseeable to the law firm that B might suffer psychiatric injury as a result of stress at work until 30 October 2003, and the law firm had not breached its duty of care to B.
Appeal dismissed
B appealed. She listed 22 grounds, basically around allegations that the trial judge had erred in relation to the concept of duty of care and in concluding that psychiatric injury had not been reasonably foreseeable, that B had not been subjected to systematic harassment and that her psychiatric condition had not been caused by the employer’s negligence. She also alleged that the judge had made material errors in his findings of fact.
In the Court of Appeal of the Supreme Court of Victoria, the judges unanimously agreed that the trial judge had correctly identified the legal principles and drawn the correct conclusions from the evidence.
Consideration of evidence
B had a depressive illness and from that perspective she had ‘reacted to a number of trivial interoffice and interpersonal conflicts’. She had not deliberately tried to mislead the court but her evidence had involved exaggeration and some downplaying of the significance of events. There were no incontrovertible facts or uncontested testimony to indicate that the trial judge’s decision had been wrong. As a result, there was no obvious basis for the Court of Appeal to interfere with the original findings of fact.
The court emphasised that B’s injury had not been reasonably foreseeable. Not only had the managing partner not known about any health effects arising from stress until 30 October 2003, there was also evidence that B and LF had worked effectively together between the incidents of friction. B had, for example, on 9 May 2003, prepared a very positive report on the family law department to the other partners of the law firm, looking forward to expansion and becoming a leading family law practice. There was also evidence that B had worked satisfactorily as late as October 2003, when three partners had sent her emails of congratulations and thanks after her work in a custody dispute. She had at that point still been coping well with her workload and not shown signs of stress.
As none of the allegations of breach could be established on the facts, the appeal had to be dismissed.
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