JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 November 2017–19 December 2017, 22 December 2017
DATE OF JUDGMENT:	29 March 2018
CASE MAY BE CITED AS:	Hingst v Construction Engineering (Aust) Pty Ltd (No 3)
MEDIUM NEUTRAL CITATION:	[2018] VSC 136

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NEGLIGENCE – Duty of care – Scope of duty – Psychiatric injury – Workplace bullying – Whether employer breached common law or statutory duty – Whether injury reasonably foreseeable – No evidence of bullying – Injury not reasonably foreseeable – Proceeding dismissed – Koehler v Cerebos (Aust) Ltd (2005) 222 CLR 44 applied – Brown v Maurice Blackburn Cashman (2013) 45 VR 22; Swan v Monash Law Book Co-operative [2013] VSC 326 ; Govic v Boral Australian Gypsum Pty Ltd (2015) 47 VR 430 considered – Accident Compensation Act 1985 s 143AB; Occupational Health and Safety Act 2004 s 34.

TERMINATION OF EMPLOYMENT – Application for unfair dismissal remedy – Whether genuine redundancy – Claim settled – Whether release executed under duress – No evidence of duress – Westpac Banking Corporation v Cockerill (1998) 152 ALR 267 followed – Workplace Relations Act 1996 s 353.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the Defendant	Mr J Gorton QC with Mr N Dunstan	Lander & Rogers

TABLE OF CONTENTS

The law on bullying............................................................................................................ 2
The trial and the evidence.................................................................................................. 6
The credibility of the witnesses....................................................................................... 10
The alleged conspiracy........................................................................................ 12
The disputed email.............................................................................................. 17
The way the plaintiff ran his case...................................................................... 21
Other witnesses.................................................................................................... 25
Conclusion as to reliability of witnesses.......................................................... 28

The bullying claim............................................................................................................ 28
Was the plaintiff abused over the telephone?................................................. 28
Finding in relation to the phone calls............................................................... 38
Was the plaintiff’s injury reasonably foreseeable?......................................... 41
Did the defendant breach its duty of care?....................................................... 42

The peripheral incidents.................................................................................................. 43
The coffee incident............................................................................................... 43
The exclusion from meetings............................................................................. 44
The allocation of office space............................................................................. 44
The flatulence incident(s).................................................................................... 44
The horseplay around the office and on the worksite.................................... 46
The Christmas lunch at the Olive Tree............................................................. 47
Conclusion as to the peripheral incidents........................................................ 47

Did the plaintiff’s supervisor fail to intervene?............................................................ 47
Breach of statutory duty................................................................................................... 50
The unfair dismissal claim............................................................................................... 52
Duress.................................................................................................................... 55

Conclusion.......................................................................................................................... 60

HER HONOUR:

The plaintiff, Mr David Hingst, was employed by the defendant, Construction Engineering (Aust) Pty Ltd (‘Construction Engineering’), as a contract administrator from 13 May 2008 to 8 April 2009.

The plaintiff claims he was bullied in the workplace during this period and, as a result, has developed psychiatric and physical injuries, including fibromyalgia and irritable bowel syndrome, for which he is entitled to damages in the sum of $1,805,138 (‘the bullying claim’).[1] He further complains that the defendant unlawfully terminated his employment and that the Deed of Release and Settlement (‘the Deed’) he signed in settlement of his…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hingst v Construction Engineering (Aust) Pty Ltd (No 3)

Details

AGLC: Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136
Case: [2018] VSC 136
Decision Date: 29 March 2018

CaseChat Overview and Summary

The case of Hingst v Construction Engineering (Aust) Pty Ltd (No 3) involved a dispute between the appellant, Hingst, and the respondent, Construction Engineering, regarding claims of workplace bullying and unfair dismissal. The proceedings were heard in the Supreme Court of Victoria. The appellant alleged that the respondent breached both common law and statutory duties by failing to prevent workplace bullying, which led to psychiatric injury, and also sought relief for unfair dismissal. The court was required to determine whether the respondent owed a duty of care to prevent the alleged bullying, whether the psychiatric injury was reasonably foreseeable, and whether the termination of employment was genuine.

The court examined the elements necessary to establish a duty of care in the context of workplace bullying and whether such a duty was breached. It considered the legal principles established in cases such as Koehler v Cerebos (Aust) Ltd, Brown v Maurice Blackburn Cashman, Swan v Monash Law Book Co-operative, and Govic v Boral Australian Gypsum Pty Ltd. The court found that there was no evidence of bullying and that the psychiatric injury was not reasonably foreseeable. Therefore, the respondent did not breach any duty of care. The court also assessed the termination of employment under the Workplace Relations Act 1996, concluding that there was no evidence of duress in the execution of the release agreement. The court followed the reasoning in Westpac Banking Corporation v Cockerill and dismissed the claims.

As a result of the findings, the court dismissed the proceeding. The court held that the respondent did not breach any duty of care owed to the appellant and that the termination of employment was genuine. The court found no evidence of workplace bullying and concluded that the psychiatric injury was not reasonably foreseeable. The appeal was therefore dismissed, and the orders of the lower court were affirmed.

Orders