Vincent v Victorian WorkCover Authority (VCC 2023)

Link to Decision

Link to Video

The upsurge in workers compensation claims for mental injury over the past few years has produced a number of litigated proceedings, across various jurisdictions, where the central issue has been whether management activities by employers could amount to injurious conduct for compensation purposes.

In the most recent addition to that line of authority, Vincent v Victorian WorkCover Authority, a single judge in the Victorian County Court denied a worker's common law claim for bullying against their employer, on the basis that the employer’s behavior constituted reasonable efforts to maintain safety standards in the workplace.

Key Takeaways

• The fact that an employee sustains an injury at work that satisfies the 'no fault' statutory scheme is not sufficient to establish the necessary elements required to prove a case at common law.
• Where bullying is claimed at common law, the basic principles of negligence still apply. The plaintiff must still prove that an act or omission by the employer created a reasonably foreseeable risk of psychiatric injury.
• Workplaces need to be viewed with an element of common sense. Conflicts and disagreements in the workplace are natural, and not all such instances give rise to actionable wrongs.
• Employers have a right to give reasonable directions to employees, having regard to the employment arrangement, relevant system and processes, and the safety of employees and customers.

Brief Facts

The plaintiff, Ms Vincent, worked as a dental nurse for a sole practitioner dental practice operated by Dr Elbarki. She commenced work at the practice in 2008, but began work for Dr Elbarki in 2013, when the latter purchased the practice. The plaintiff alleged that from September 2015 to 4 July 2016, Dr Elbarki treated her in a manner that was aimed to make her resign, involving 15 instances of bullying committed against her in that time. The plaintiff has not worked since.

The plaintiff alleged that as a result of that bullying, she suffered a permanent mental injury, resulting in a loss of enjoyment of life and a permanent incapacity for any type of employment. She sought nearly $1 million in damages.

In response, the employer argued the plaintiff had behaved inappropriately, and contrary to various workplace policies and lawful directions, resulting in the need to direct, manage, supervise, and discipline her. The employer claimed the plaintiff often ignored instructions and replied in a combative fashion, including a series of lengthy, argumentative, inaccurate and sometimes threatening correspondence. This was said to have created a difficult work environment.

The employer accepted that 14 of the 15 incidents occurred, but disputed the plaintiff’s version of the events, and denied that the instances amounted to bullying. Instead, they argued that Dr Elbarki’s conduct was lawful and reasonable, and that she was entitled to act in that manner for the good of the business, as well as staff and client safety.

Judgment

In July this year, a jury was unable to reach a verdict at the hearing. As a result, Judge Morrish agreed to provide a judgment, based on the evidence given at trial. The judge provided an informative judgment explaining the distinction between bullying and negligence, and setting out the elements required to be proven in order to establish the tort of negligence for a psychiatric injury where bullying is alleged to have occurred.

Judge Morrish previously rejected the plaintiff’s attempt to tender as evidence her accepted workers compensation claim, which identified three instances of bullying over a one-week period. Her barrister argued that acceptance by the insurer constituted a "global admission" that the plaintiff was exposed to injurious bullying throughout the relevant period. However Judge Morrish stated that what occurred in one week had little relevance to the overall claim of repeated and prolonged acts of bullying, and that whether the plaintiff sustained an injury at work under the 'no fault' statutory scheme did not establish the elements of negligence, injury, loss/damage, or causation at common law.

Judge Morrish also disagreed with plaintiff’s counsel that once bullying is established there is no need to consider whether that conduct creates a reasonably foreseeable risk of psychiatric injury, as such a risk is inherent in bullying. The judge indicated that in common law claims of bullying, the cause of action was still negligence, and so the plaintiff must prove that an act or omission of the employer created a reasonably foreseeable risk of psychiatric injury. The basic principles of negligence still apply, just like a negligence claim based on a physical injury sustained in an industrial accident.

Judge Morrish otherwise cautioned that workplaces need to be viewed with a common sense lens, bearing in mind that employers cannot prevent or eliminate friction between employees, and that personality conflicts and disagreements are common in workplaces. Not all such conduct amounts to bullying or gives rise to an actionable wrong, and it was seen as the court’s role to judge whether the conduct alleged was “acceptable friction”, or bullying. She also reinforced the employer’s right to give lawful and reasonable directions to employees, according to the circumstances of employment, the employer’s system and processes, and its duty of care to all employees, as well as customers/clients.

With the latter in mind, Judge Morrish noted that the employer also needed to be mindful of the safety of another employee, Mrs Wright, who it was alleged the plaintiff had assaulted. It was also noted that as a dentist, the employer owed a duty of care to her patients, to not expose them to risk of harm.

In deciding the case in favour of the employer, Judge Morrish noted that the plaintiff was difficult and combative at work, would not accept responsibility for her actions, disregarded directions that she disagreed with, often performed tasks other than those she was directed to, and tried to pass on her cleaning duties to the dentist. The employer was therefore seen as entitled to take reasonable actions to maintain hygiene and safety standards in the workplace, including disciplinary action where the plaintiff had breached such standards and exposed other staff (or clients) to risk of injury.

While the employer’s behavior was on occasion acknowledged not to have been ideal, such conduct was seen as one-off "outbursts of a frustrated person", rather than bullying.

Ultimately, Judge Morrish was not satisfied that the employer engaged in bullying, or that the employer’s behavior was unreasonable in the circumstances. Accordingly, the defendant was not found to have been negligent, and the plaintiff’s case was dismissed.

Implications

Assuming that Judge Morrish’s reasoning is adopted in subsequent proceedings, this judgment imposes some further barriers for plaintiffs to overcome in seeking to prove a common law claim in Victoria for psychological injury. Defendant lawyers may argue that those barriers should already have been in place, and that this judgment merely reinforces them. Whatever the case, plaintiffs will now find it more difficult to point to the acceptance of a workers compensation claim at statutory level as evidence from which an inference may be drawn that their common law claim should succeed. Further, where bullying is claimed at common law, the basic principles of negligence still apply, and that test is the same as for any other type of injury claimed at common law. In addition, the judgment acknowledges the often difficult task employers face in managing employees, and reinforces the rights of employers to direct, manage, supervise, and discipline their employees for the sake of the business, and particularly for the purpose of upholding safety standards within a business.