Extreme bullying leads to $150,000 in exemplary damages

Cases

Extreme bullying leads to $150,000 in exemplary damages

A sickening litany of workplace abuse over more than four years led the NSW Supreme Court to find News Limited and a security company, Group 4 Securitas, vicariously liable for a security manager's behaviour. The Court ordered News Limited to pay the worker, now suffering from serious psychiatric illnesses, $150,000 in exemplary damages.

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A sickening litany of workplace abuse over more than four years led the NSW Supreme Court to find News Limited and a security company, Group 4 Securitas, vicariously liable for a security manager's behaviour. The Court ordered News Limited to pay the worker, now suffering from serious psychiatric illnesses, $150,000 in exemplary damages.

The case underlines how critical it is to ensure employees won't feel victimised if they report unacceptable behaviour on the part of their supervisors.

Background

Group 4 Securitas was contracted to News Limited to provide security at its premises. Its employee (the plaintiff) worked under the direction of the News Limited security and fire manager.

Over the course of more than four years, the manager 'so grossly misbehaved towards him that he suffered serious psychiatric injury, namely post-traumatic stress disorder and major depression'.

Incidents

The incidents complained of were so indefensible that News Limited didn't even try. It gave evidence that as soon as it learned of the conduct, it terminated the manager's employment.

The abuse started with verbal attacks, calling the Fijian-born worker a 'coconut head, monkey face, piker, and black man' plus various four-letter words and derogatory comments.

The abuse included pressure on the worker to work extremely long hours. It deteriorated into breaches of privacy when the worker used the toilet. And it culminated in sexual assault incidents, whereby the manager forced the worker to watch him fondle himself while taking a shower, and even squeezed the worker's genitals on one occasion.

These, and other incidents, occurred in an atmosphere where the manager was constantly threatening the worker with physical violence, the loss of his job, and even at times with the loss of his life.

Eventually, the torrent of abuse tipped the plaintiff over the edge of mental health. He slid into depression, started drinking heavily, and suffered suicidal thoughts. His marriage broke up, he was hospitalised and he became completely incapacitated for any form of paid work. The Court said he would be 'an emotional cripple of the rest of his life'.

Why didn't the plaintiff complain?

The worker gave evidence that he did complain to a general manager at Group 4, but was given the impression that the contract between News Limited and Group 4 was valuable, the customer was 'an extremely demanding client' and that the plaintiff should 'hang in there'. The Supreme Court accepted evidence that Group 4 was not aware of the detail of the specific incidents, including racial slurs or harmfully demeaning conduct.

Justice Adams conceded he was at a loss to explain why the plaintiff hadn't complained specifically about the manager's conduct.

'I am sure they involved fear of reprisal, shame and embarrassment and a sense of subordination and overwhelming powerlessness...

Yet, bullying behaviour involving grossly improper conduct, including racist and sexist vilification, is notoriously under-reported even in the workplace, and the undoubted fact that many victims seem unable or unwilling to take action at least for a considerable period of time shows that such responses are well within the range of ordinary human conduct and we should not be altogether surprised when it occurs.

It is a regrettable commonplace of human experience that so often bullies seem to be able successfully to identify their marks.'

Nice policy, poor communication

Nevertheless, he felt the Group 4 manager was well aware that the News Limited manager was a bully and should have realised that he was frequently verbally intimidating to staff. Group 4 had a policy prohibiting personal vilification and systems designed to deal with its occurrence, but the Court said it was not made sufficiently clear to all employees that they had a duty not only in relation to acts done to them but also acts done to others.

The Court said that employers generally should investigate even the occasional complaint. Failure to do so 'might well induce an employee to think that making complaints of this kind is pointless and therefore to continue to suffer from misconduct. Second, it is commonsense that misconduct of this kind, if unchecked, is very likely to continue and, quite possibly, increase in its offensiveness...'

Justice Adams assessed the differing contributions from News Ltd and Group 4 as 65% and 35% respectively. He found the News Limited's employee's conduct 'so grave and its consequences so serious that an award of $150,000 is called for.' However, he rejected calls for exemplary damages or aggravated damages against Group 4. He said their mistake was their failure 'to ensure that its employees - however junior - understood what they should do if they witnessed the kind of conduct that they saw occurring to plaintiff...this was by way of omission than a contumelious disregard of the plaintiff's rights.'

Naidu v Group 4 Securitas Pty Ltd & Anor [2005] NSWSC 618

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