Darma v Claremont Connections Pty Ltd (NSWDC 2021)

LINK TO DECISION

Key Takeaways

• Turks acted for the defendant employer in this claim.
• The employer was successful in defeating a claim for work injury damages brought by a worker for allegations of bullying and harassment (alleged racist and derogatory remarks) by his supervisor.
• Employers must ensure that proactive and timely steps are taken to investigate any allegations of bullying and harassment to support a successful defence.
• All management staff, supervisors and employees should be regularly trained and made aware of procedures for handling bullying and harassment complaints.

Brief Facts

The worker alleged that prior to the termination of his employment, he was subjected to workplace bullying and harassment, which caused him psychological injury.

The worker was employed by a business that sold and distributed haircare products on a ‘just in time’ inventory model. The worker’s duties primarily involved picking and packing orders, as well as occasionally driving a truck to collect products. It was accepted that the work was high paced and required timely action by staff in order to maintain service levels.

It was alleged by the worker that he was bullied and harassed by his direct supervisor. It was also claimed that other supervisors and the owner of the company failed to take appropriate action in response to the worker’s complaints.

The worker’s complaints included specific allegations that his direct supervisor:

• Yelled at him for being too slow when picking products from shelves and while driving the company truck;
  
• Called him an ‘idiot’; a ‘pig’ and a ‘(censored) Indonesian'; and
  
• Bullied everyone, including other supervisors.

The employer called the worker’s main supervisor and another supervisor as witnesses. They both denied the worker’s allegations. Written statements from other employees of the business were also provided, none of them witnessed any of the bullying alleged by the worker.

It was further submitted by the employer that the business is one in which bullying and discrimination is not tolerated, as the business’ employees come from many different cultures and some had limited English.

The evidence revealed the principle reason for the worker’s dismissal was that he failed to maintain his picking speed at an acceptable level and was the only employee who could not maintain stable picking rates, which eventuated in his termination.

Judgment

After carefully weighing up the conflicting evidence, Judge Coleman rejected the worker’s evidence of bullying and harassment.

In His Honour’s consideration of the evidence, he stated that:

‘I must ask myself whether I have from the evidence an actual persuasion that the disputed facts in issue, namely whether the bullying conduct alleged by the plaintiff, indeed did occur.

After reviewing all of the evidence and having seen each of the witnesses in the witness box, I have formed the view that I do not have the actual persuasion of my mind that the events occurred as the plaintiff alleges.’

The Court ultimately entered a verdict in favour of the defendant employer. The worker was ordered to pay the employer’s costs.

Implications

This case was decided on the Court’s careful weighing up of the conflicting evidence between the worker and the employer’s witnesses.

The key for employers is to ensure that thorough and timely investigation of all complaints (and taking supporting statements) is undertaken as soon as notice of any complaints are received. Such actions will bolster the chances of a successful defence should a claim for work injury damages eventuate.