Vincent v Victorian WorkCover Authority
[2023] VCC 1667
•22 September 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-20-02294
| CLAIRE VINCENT | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Pre-trial 22, 23, 25, 26, 29, 30 and 31 May 2023 and 5 June 2023 – Jury trial 6, 7, 8, 9, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, and 30 June 2023, 3, 4, 5, 6, 7, 10, 11, 14 and 18 July 2023 | |
DATE OF JUDGMENT: | 22 September 2023 | |
CASE MAY BE CITED AS: | Vincent v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1667 | |
REASONS FOR JUDGMENT
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Subject:TORT – NEGLIGENCE – DUTY OF CARE
Catchwords: Psychiatric injury allegedly caused by exposure to bullying by dentist to dental assistant in the workplace – Scope of duty of care – Whether lawful directions, supervision, training and discipline constitute bullying – Whether directions, supervision, training and disciple committed for improper or ulterior purpose – Relevance of motive – Whether plaintiff must prove reasonable foreseeability in case where bullying alleged – Whether plaintiff must prove “signs” that she was vulnerable to psychiatric injury – Relevance of principles in Koehler v Cerebos (Australia) Ltd – Causation
Legislation Cited: Evidence Act 2008
Cases Cited:Fox v Wood (1981) 148 CLR 438; Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88; Swan v Monash Law Book Co-operative (trading as Legibook) [2013] VSC 326; Stevens v DP World Melbourne Ltd [2022] VSCA 285; Johnson v Box Hill Institute of TAFE [2014] VSC 626; Koehler v Cerebos (Australia) Ltd (2005) 222 CLR 44; Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327; Govier v The Uniting Church in Australia Property Trust [2017] QCA 12
Judgment: The Court is not satisfied that there was any negligence on the part of the employer that was a cause of the Plaintiff’s injury, loss and damage. Judgment in favour of the Defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P J Hayes KC with Mr A Kleiman 22 May 2023 – 11 July 2023. Thereafter: Mr J Mighell KC with Mr A Kleiman | Redlich’s Work Injury Lawyers |
| For the Defendant | Mr A T Broadfoot KC with Mr N J Dunstan | Lander & Rogers |
Table of Contents
Background
Overview of the plaintiff’s case
Overview of the defendant’s case
Overview of the allegations of bullying
The jury questions left for the Court’s determination
Issues at trial
Summary of findings
Applicable legal principles
Burden of proof
Standard of proof
Inferential reasoning
Negligence and bullying
The plaintiff’s case
The plaintiff’s evidence
Wendy Cole’s evidence
Dr Aram Isaac’s evidence
Dr Bharat Saluja’s evidence
Emily Vincent’s evidence
Medical reports read into evidence
Dr Peter Graf, Treating Psychiatrist
Dr Chris Grant, Consultant Psychiatrist
Mr Robert Wilks, Clinical Psychologist
Associate Professor Saji Damodaran, Consultant Psychiatrist
Dr Gregor Schutz, Consultant Psychiatrist
Medical reports tendered by the plaintiff
Admissions made by the defendant
The defendant’s case
Dr Heba Elbarki’s evidence
Debbie Wright’s evidence
Associate Professor George Mendelson
Did Dr Elbarki have a motive to bully the plaintiff?
The plaintiff’s correspondence
The histories the plaintiff gave to medical practitioners
The plaintiff’s evidence
Cross-examination of Dr Elbarki
The financial state of the practice
Analysis
Credibility
The Plaintiff’s credibility
Dr Elbarki’s credibility
Mrs Cole’s credibility
Mrs Wright’s credibility
Miss Vincent’s credibility
Analysis of the relevant evidence pertaining to each allegation of bullying
1st incident - “For fuck’s sake, just go”
2nd incident - December 2015 conversation “lots of jobs Claire would be good at”
3rd incident - Filling in on 27 January 2016 and leaving work early - first warning letter
4th incident - only allowed to discuss work at work, not to talk to colleagues or patients (being “frozen out”)
5th incident - The tracking incident and its aftermath
6th incident - Changing the locks after Mrs Cole left, not giving the plaintiff a key
7th incident - Reducing hours of work at short notice the day Dr Elbarki attended a CPR course
8th incident - The second warning letter
9th incident - Directed to clean the toilets on 3 June 2016 minutes before a 9.30 patient was due to be seen.
10th incident - Alleged assault on Mrs Wright 3 June 2016
11th incident - Chain across access door to reception area
12th incident - Intensification of “Micro-management” and directions to needlessly scrub instruments
13th incident - The third warning letter
14th incident - The autoclave door incident on 1 July 2016
15th incident - The pants incident on 4 July 2016
Analysis – was the defendant negligent?
Directions
Supervision and training
Disciplinary actions
Isolated incidents
Conclusion
Causation
Final conclusion and orders
HER HONOUR:
Background
1The plaintiff, Claire Vincent, worked as a dental nurse for a sole practitioner dental practice in Mornington, Victoria, operated by Elbarki Nominees Pty Ltd (“the employer”). At all material times, the practice was supervised, managed and controlled by Dr Heba Elbarki, dentist. Elbarki Nominees Pty Ltd was deregistered as a company on 27 November 2018 and remains deregistered. By virtue of s601AG of the Corporations Act 2001 (Cth) the Victorian Workcover Authority, the defendant in these proceedings, is responsible for any liability of the employer to the plaintiff prior to Elbarki Nominees Pty Ltd’s deregistration.
2The plaintiff has brought common law proceedings against the defendant seeking to recover damages for injuries she alleges to have sustained in the course of her employment with the employer “as a result of repetitive and sustained conduct perpetuated by Dr Elbarki towards her, which in the circumstances amount to and/or was ‘bullying’”.[1]
[1]Amended Statement of Claim dated 15 August 2022, paragraph 8
3The mode of trial was by Judge and Jury.
4Mr P Hayes KC appeared with Mr A Kleiman on behalf of the plaintiff. Mr A Broadfoot KC appeared with Mr N Dunstan on behalf of the defendant.
5Pre-trial arguments occupied eight days of hearing before me on 22, 23, 25, 26, 29, 30 and 31 May 2023 and on 5 June 2023.
6A jury of six persons was empanelled on 6 June 2023 and the trial continued on 7, 8, 9, 13, 14, 15, 16, 19, 20, 21, 22, 23, 26, 27, 28, 29, and 30 June 2023 and 3, 4, 5, 6, 7, 10 and 11 July 2023.
7On Friday 7 July 2023 the jury indicated that they were unable to reach a unanimous verdict. I gave a perseverance direction. Later that day, the jury repeated that they could not reach a unanimous verdict. A further perseverance direction was given.
8On 10 July 2023, the jury again stated that they were unable to reach a unanimous verdict, following which I directed the jury that they could return a majority verdict, comprising of five of their number. Later that day, the jury indicated that they could not reach a majority verdict. Accordingly, I discharged the jury without verdict and heard submissions from the parties about what course should follow. Mr Broadfoot submitted that I should determine the matter for myself, while Mr Hayes submitted that I should order a new trial before judge and jury.
9I heard further submissions on 11 July 2023, and due to the availability of another judge of the Court, I ordered the parties to attend for judicial mediation that day. Unfortunately, the matter did not resolve. I stood the matter over for mention on 14 July 2023. Mr Hayes withdrew as leading counsel for the plaintiff.
10On 14 July 2023 Mr Mighell KC announced his appearance with Mr A Kleiman on behalf of the plaintiff.
11By consent, the parties agreed that I should determine the matter for myself on the basis of the evidence given and the submissions made at trial before the jury. I acceded to that request and ordered under Order 47.02 of the County Court Civil Procedure Rules 2018 that the trial would continue and that I would determine the matter. I reserved the right to the parties to apply for leave to introduce any further evidence and to make any further submissions. I adjourned the further hearing of the matter to 18 July 2023 for this purpose.
12On 18 July 2023 Mr Broadfoot tendered the plaintiff’s worker’s claim form dated 29 June 2016.[2] Mr Mighell tendered written submissions.[3] Mr Mighell and Mr Broadfoot each made brief oral submissions.
[2]Exhibit 11
[3]Exhibit OO
Overview of the plaintiff’s case
13The plaintiff commenced work for the employer in 2013 when Dr Elbarki purchased a dental practice in Mornington from Dr Neil Hussey.
14For the first two years of her employment, the plaintiff believed her relationship with Dr Elbarki was good and she was happy at work.
15In late 2015, the plaintiff believed that Dr Elbarki’s behaviour became erratic. The plaintiff believed that the practice was not doing well financially and that Dr Elbarki was trying to get rid of her. The plaintiff also believed that Dr Elbarki embarked on a nine-month course of conduct designed to engineer her resignation.
16The plaintiff identified 15 incidents that she alleged, when taken as a whole, established that Dr Elbarki had bullied her. Her claim in negligence is that as a result of being exposed to that bullying, the plaintiff has suffered a permanent mental injury and as a consequence continues to suffer loss of enjoyment of life. She also claims to be totally and permanently incapacitated for any form of employment.
17Initially, the plaintiff also alleged breach of contract,[4] however, prior to final addresses the plaintiff withdrew this claim.
[4]Paragraph 11 of the Amended Statement of Claim dated 15 August 2022
Overview of the defendant’s case
18The defendant denies that Dr Elbarki bullied the plaintiff.
19The defendant denies that the dental practice was struggling financially under Dr Elbarki, or that there was any need or desire to rid the practice of the plaintiff.
20The defendant submits that it was the plaintiff whose behaviour was unacceptable, resulting in the need for Dr Elbarki to direct, manage, supervise, train and/or discipline her. The defendant contends that the plaintiff resisted the lawful directions given to her by Dr Elbarki and that the plaintiff became argumentative and combative. The defendant alleges that the plaintiff made life at work difficult, and that she sent a series of lengthy, argumentative, inaccurate and sometimes threatening correspondence to Dr Elbarki.
21The defendant accepts that fourteen of the fifteen incidents occurred, however disputes the plaintiff’s version of these incidents. In any event, the defendant denies that either taken individually or as a whole the incidents amount to bullying.
22The defendant accepts that the plaintiff suffers from a diagnosable mental injury, however denies that there was any negligence on the part of the employer that was a cause of the plaintiff’s injury, loss and damage.
23Initially, the defendant alleged contributory negligence on the part of the plaintiff,[5] however prior to empanelment this claim was withdrawn.
[5]Paragraph 13 of the Defence to Further Amended Statement of Claim dated 16 August 2022
Overview of the allegations of bullying
24The plaintiff worked as a dental assistant for Dr Elbarki from the time that the employer purchased the dental practice from Dr Hussey in late 2013. The plaintiff signed a contract of employment with the employer dated 18 November 2013.[6]
[6]Exhibit A
25The plaintiff left work on 4 July 2016 after a disagreement with Dr Elbarki about the pants the plaintiff wore to work that day. She never returned to any form of employment after that. This was the last of a number of incidents that occurred between the plaintiff and Dr Elbarki.
26The next day, on 5 July 2016, the plaintiff received a follow-up phone call about her recent breast screen. The plaintiff was subsequently diagnosed with breast cancer requiring mastectomy, chemotherapy and ongoing medication.
27The first incident occurred when the plaintiff wanted to leave work early. Dr Elbarki told the plaintiff to leave, using a swear word.
28The second incident relates to a conversation that the plaintiff overheard in which Dr Elbarki said “there are lots of jobs that Claire [the plaintiff] would be great at.” There is no dispute that Dr Elbarki uttered those words, but the parties disagree about the context and meaning of the conversation.
29The third incident relates to an occasion when the plaintiff worked on a morning that was not her usual day of work. The parties agree that the plaintiff worked that day, but there is disagreement over whether the plaintiff left work early.
30The fourth allegation of bullying, which alleges that Dr Elbarki directed the plaintiff not to talk to colleagues or patients and that the plaintiff was only allowed to discuss work at work, is disputed, although the defendant agrees that while the plaintiff was under a short period of suspension on full pay, she was directed not to contact work colleagues or patients during the period of her suspension.
31The fifth incident arises from a major breach of hygiene protocols that occurred while the plaintiff was on holidays (referred to by the parties as the “tracking incident”). When the plaintiff returned from holidays both she and another member of staff, Mrs Wendy Cole, attended a meeting during which the breach was discussed. Mrs Cole resigned approximately one week after the meeting and subsequently brought unfair dismissal proceedings against the employer, which were dismissed by the Fair Work Commission on 9 January 2017.
32The sixth incident follows on from Mrs Cole’s departure from the practice. Dr Elbarki changed the locks to the practice, and did not give the plaintiff a key. The plaintiff previously had a key.
33The seventh incident concerns a direction given to the plaintiff not to attend work on the morning of Thursday 2 June 2016 because Dr Elbarki would be attending a CPR course and the plaintiff’s services were not required that morning. The plaintiff challenged the direction and turned up to work on the morning of 2 June 2016 to find that the practice was closed.
34The eighth incident relates back to the fifth incident. After the tracking incident, Dr Elbarki issued a warning letter to the plaintiff referring not only to the tracking incident, but also to other problems she identified with hygiene standards at the practice.[7] The plaintiff did not receive the letter until 2 June 2016.
[7]Exhibit R
35The ninth incident concerns cleaning duties, which all members of staff were required to do (although the plaintiff claims at this time she was the only one required to do the cleaning). The plaintiff alleges that on the morning of 3 June 2016 Dr Elbarki directed her to clean the toilets only four minutes before a patient was due to be seen at 9.30am, leaving her insufficient time to be cleaned up and ready to assist with the patient. The plaintiff disobeyed the direction. The defendant agrees that Dr Elbarki directed the plaintiff to clean the toilets, but not four minutes before the patient was due to be treated.
36The tenth incident also occurred on 3 June 2016. Mrs Debbie Wright, the receptionist, alleged that the plaintiff entered the reception area, accessed a patient’s file on the computer, and when Mrs Wright told her to stop, the plaintiff assaulted Mrs Wright by shoving her with her elbow. The plaintiff admits that she entered the reception area and was accessing a patient’s file when Mrs Wright told her not to. She states however, that Mrs Wright touched her hand while attempting to grab the computer mouse from her. The plaintiff denies assaulting Mrs Wright. There is no dispute that Mrs Wright told Dr Elbarki that the plaintiff had assaulted her, and that Dr Elbarki suspended the plaintiff on full pay while she investigated the allegations.
37The eleventh incident relates back to the tenth. While the plaintiff was on suspension, Dr Elbarki and Mrs Wright installed a chain across the reception door as a measure to prevent the plaintiff from accessing the reception area when Mrs Wright was working there.
38The twelfth incident concerns Dr Elbarki’s management and supervision of the plaintiff. The plaintiff alleges that Dr Elbarki “micro-managed” her unjustifiably, watching her clean dental instruments and directing her to “scrub harder” when the instruments were already clean. The defendant agrees that after the tracking incident Dr Elbarki supervised the plaintiff cleaning and sterilising instruments to ensure the job was done correctly because she did not want any further breaches of hygiene protocols. Dr Elbarki denies directing the plaintiff to scrub instruments needlessly.
39The thirteenth incident relates back to the tenth, being the alleged assault on Mrs Wright by the plaintiff. The plaintiff’s suspension was lifted after the plaintiff had served three working days away from the practice. A meeting was held on 9 June 2016 to investigate the circumstances of the alleged assault. At the meeting the plaintiff was given the opportunity to give her account of the incident, but declined. Instead she handed a letter to Dr Elbarki in which she included a statement containing her versions of event.[8] Dr Elbarki issued the plaintiff with a third warning letter.[9]
[8]Exhibit BB
[9]Exhibit AA
40The fourteenth incident concerns an occasion when Dr Elbarki was observing the plaintiff sterilising instruments. The plaintiff was wearing gloves and closed the autoclave door. Dr Elbarki believed that the plaintiff touched the door with a contaminated glove. The plaintiff believed that her glove did not make contact with the autoclave door.
41The final incident occurred on Monday 4 July 2016. The previous Friday, Dr Elbarki told the plaintiff that the pants she was wearing were not appropriate for work and to buy a pair of tailored pants to wear to work on Monday. On Monday, the plaintiff arrived at work wearing the same pants she had worn the previous Friday. Dr Elbarki asked the plaintiff why she had not purchased tailored pants, and after hearing the plaintiff’s response told the plaintiff that she did not want to look at the plaintiff’s “sagging arse and VPL [visible panty line] anymore.”
42The plaintiff then left work, never to return to any form of employment.
The jury questions left for the Court’s determination
43The following questions were left for the jury’s, and now my, consideration:
Question one: Was there any negligence on the part of the Defendant[10] that was a cause of the Plaintiff’s psychiatric injury, loss and damage? YES/NO
Question two: If yes to question one, in what amount do you assess the Plaintiff’s damages?
(a) General damages for pain and suffering and loss of enjoyment of life - $____
(b) Economic loss
(i) Past economic loss - $______
(ii) Future economic loss - $______
[10]For the purposes of the jury trial, Elbarki Nominees Pty Ltd was named as the defendant. No mention was made of the Victorian WorkCover Authority.
44The parties agreed on Fox v Wood[11] damages at $21,900 as at 18 July 2023.[12]
[11]Fox v Wood (1981) 148 CLR 438
[12]Exhibit OO paragraph 12(vi)
Issues at trial
45Although the occurrence of fourteen of the fifteen incidents is not in dispute, the circumstances surrounding each such incident are disputed.
46The plaintiff contends that the practice was struggling financially and that Dr Elbarki engaged in a course of conduct designed to force the plaintiff to resign so as to save the business the expense of her wages and entitlements. The plaintiff contends that none of Dr Elbarki’s purported directions, management, supervision, training or discipline were exercised bona fide. Rather these acts were done for the improper or collateral purpose of exerting pressure on the plaintiff so that she would quit her job.
47The plaintiff contends that the employer was negligent by exposing the plaintiff to bullying at the hands of Dr Elbarki, which was a cause of her mental injury, loss and damage.
48On the other hand, the defendant contends that Dr Elbarki’s conduct was lawful and reasonable in that Dr Elbarki was entitled in all the circumstances to direct, manage, supervise, train and discipline the plaintiff. The defendant contends that Dr Elbarki did not engage in a course of conduct designed to engineer the plaintiff’s resignation, and that she had no motive to do so.
49The defendant contends that there was no negligence on the part of the employer that was a cause of any injury, loss or damage to the plaintiff.
50It is not in dispute that the plaintiff suffers a mental injury, although the nature and extent of the injury is in dispute. The defendant denies that any such injury was caused by the negligence of the employer.
51On the question of damages, the plaintiff asserts that but for the injury she would have continued to work until age 65. Mr Hayes invited the Court to assess general damages at between $300,000 and $400,000, but say $350,000. He submitted the plaintiff’s past economic loss should be found in the sum of $250,352.34 and future economic loss at $353,134.14. On the other hand, the defendant submitted that as there was no negligence on the part of the defendant, the question of damages does not arise. If, however, the answer to question one is yes, the plaintiff’s general damages should be assessed at no more than $100,000 to $150,000. On the question of economic loss, the Court should apply a substantial discount.
Summary of findings
52I answer the questions left for my determination as follows:
53Question one: Was there any negligence on the part of the Defendant that was a cause of the Plaintiff’s psychiatric injury, loss and damage? For the reasons explained below, I answer question one, “NO”.
54Question two: If yes to question one, in what amount do you assess the Plaintiff’s damages? It is unnecessary to answer this question in view of my answer to question one.
Applicable legal principles
Burden of proof
55The burden of proof rests with the plaintiff.
Standard of proof
56The standard of proof is the balance of probabilities, taking account of the nature of the cause of action or defence, and the nature of the subject matter of the proceeding and the gravity of the matters alleged.[13]
[13]Section 140 Evidence Act 2008
Inferential reasoning
57The plaintiff’s case depends on a number of inferences being drawn. The Court may draw inferences from facts of which direct evidence was given and which the Court accepts as being correct on the balance of probabilities. The totality of accepted facts in combination must be considered together, giving effect to their united and combined force.[14]
[14]Masters Home Improvement Australia Pty Ltd v North East Solutions Pty Ltd [2017] VSCA 88, particularly at [101]
58The inferences that the plaintiff relies upon include:
(a) That the practice was struggling financially;
(b) That Dr Elbarki wanted to reduce the expenses of the practice;
(c) That Dr Elbarki wanted the plaintiff to quit her job so as to spare the practice the expense of her wages; and
(d) That Dr Elbarki had a motive to bully the plaintiff which she acted on by exerting pressure on the plaintiff so that she would resign.
59The defendant submitted that the above inferences could not be drawn, and, to the contrary, invited the Court to infer that Dr Elbarki did not want the plaintiff to quit her job, and that she had no financial or other reasons to pressure the plaintiff to leave.
60The defendant submitted that Dr Elbarki was trying to establish a new dental practice and wanted to retain her staff. She was merely attempting to direct, train, supervise, and if necessary discipline them in order to keep the practice running efficiently and safely.
Negligence and bullying
61The parties eschewed the idea of tendering the WorkSafe Guidance Note on workplace bullying. The text of that note is set out in Swan v Monash Law Book Co-operative (trading as Legibook):[15]
Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety. Within this definition ‘unreasonable behaviour’ means behaviour that a reasonable person, having regard to all the circumstances, would expect to victimise, humiliate, undermine or threaten; ‘behaviour’ includes actions of individuals or a group, and may involve using a system of work as a means of victimising, humiliating, undermining or threatening; ‘risk to health and safety’ includes risk to the mental or physical health of the employee.[16]
[15][2013] VSC 326.
[16]Swan v Monash Law Book Co-operative (trading as Legibook) [2013] VSC 326, [150]
62The parties agreed that no definition of bullying should be given to the jury, and that the jury, and now the Court, should determine what conduct amounts to bullying. The parties agreed (and as is consistent with the Amended Statement of Claim dated 15 August 2022), however, that bullying must comprise of repeated acts.
63Mr Hayes argued that once bullying is established, there is no need to consider whether that conduct creates the reasonably foreseeable risk of psychiatric injury, since such a risk is inherent in bullying.[17]
[17]Stevens v DP World Melbourne Ltd [2022] VSCA 285 at paragraphs 57-59; Johnson v Box Hill Institute of TAFE [2014] VSC 626 at paragraph 215.
64On the other hand, Mr Broadfoot submitted that negligence is the tort, not bullying, and accordingly, it is a necessary element for the plaintiff to establish that the conduct created a reasonably foreseeable risk of a diagnosable psychiatric injury to her.
65In the course of discussion with counsel I referred to the Macquarie Dictionary definition of “bully” and “bullying” to illustrate that if left at large to determine what bullying is, the jury might answer question one in the affirmative even if the conduct did not create a reasonably foreseeable risk of psychiatric injury:
“bully 1 a blustering, quarrelsome, overbearing person who browbeats smaller or weaker people. … (bullied, bullying)… 7. To act the bully towards… 8. to be loudly arrogant and overbearing.”[18]
[18]Macquarie Dictionary Revised third edition
66I agreed with Mr Broadfoot that because the cause of action is negligence, the plaintiff must prove that some act or omission on the part of the employer created a reasonably foreseeable risk of a diagnosable psychiatric injury. I consider that basic principle must apply. In my view a negligence claim based on workplace bullying resulting in mental injury has no fewer elements than a negligence claim based on a physical injury and/or mental injury sustained in an industrial accident. Take the example where a worker is injured by an electrical saw because the employer failed to install a guard. One might say if a worker uses machinery of this nature without a guard there is an inherent risk of injury and therefore the plaintiff does not need to prove the element of reasonable foreseeability. Yet even in the most obvious cases of inherent risk, the plaintiff must still prove the element of reasonable foreseeability. To say that in the case where bullying constitutes the impugned conduct resulting in a mental injury there is a lower bar for the plaintiff to prove than in any other form of industrial accident resulting in a physical injury does not sit comfortably with the fundamental elements of the tort of negligence.
67The authorities to which Mr Hayes referred do not say that reasonable foreseeability is not required in a negligence case where the particular of negligence is the exposure of the worker to bullying. Reasonable foreseeability is an essential element of the tort of negligence. The point is that in some cases the question of reasonable foreseeability will not be a live issue in the trial because the risk is obvious and/or the focus of the trial is on other issues. For example, in Swan[19] a worker at Monash Law Book Co-operative (Legibook) claimed that her co-worker was violent and engaged in other forms of bullying behaviour towards her. The plaintiff complained to management about her co-worker’s conduct. Management acknowledged that the plaintiff was at risk of harm by her co‑worker’s conduct. Reasonable foreseeability was established on those facts.
[19]Supra
68In Johnson v Box Hill Institute of TAFE,[20] the parties relied on the WorkSafe Guidance Note definition of bullying, which carries the implication that the conduct complained of must be such that it gives rise to a risk to health and safety.
[20][2014] VSC 626
69In Stevens v DP World Melbourne Ltd[21] the worker, a union representative, was exposed to many forms of personal abuse by co-workers. The learned trial judge relied on a number of definitions of bullying, including a definition provided by WorkSafe Victoria as follows:
Workplace bullying is repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety.[22]
[21][2022] VSCA 285
[22]Stevens v DP World Melbourne Ltd [2022] VSCA 285, 52
70The cases to which Mr Hayes referred are distinguishable from the present case. As can be seen in the cases mentioned, the definitions of bullying relied on by the parties or the Court included the element that the conduct complained of carries risk to health and safety. In the present case, the jury, and now me, have been left to define what constitutes bullying. Because the tort of negligence requires proof of reasonable foreseeability and because I have not been given the assistance of an agreed definition of bullying, I cannot overlook an essential element of that tort.
71I now refer to an edited version of the directions I gave to the jury on “bullying” which I adopt for the purposes of this judgment:[23]
[23]I adapted some of the model directions contained in the Civil Juries Charge Book published by the Judicial College of Victoria, as well as creating directions I considered appropriate for the present case
Question one asks: Was there any negligence on the part of the Defendant that was a cause of the Plaintiff’s psychiatric injury, loss and damage? YES/NO
…
Question one really comprises of two questions. (a) Was the defendant negligent? And, if so, (b) did that negligence cause (wholly or partially) the plaintiff’s psychiatric injury? Each of these questions has a number of sub-questions.
It is helpful to break the question of negligence up in this way: negligence first; causation second. Unless you are satisfied that both of these questions can be answered in the affirmative then you should not find the defendant liable.
General direction on the law of negligence
I will start with some general directions about negligence.
At its most basic, in order to succeed in a civil negligence claim, a plaintiff must satisfy the jury on the balance of probabilities of these things –
1.The defendant owed the plaintiff a duty of care; and
2.The defendant breached that duty; and
3.The breach of duty caused the plaintiff to suffer injury, loss and damage.
Negligence is not considered to be an intentional civil wrong – that is to say that, the plaintiff does not need to prove that the defendant intended that the plaintiff should suffer injury.
In this case, negligence is about the duty of care that all employers owe to their employees to take reasonable care for the safety of their employees. As a matter of law, every employer owes a duty to its employees to take reasonable care not to expose its employees to unnecessary risk of injury.
The employer’s duty is to take reasonable care in all the circumstances. That will ordinarily include taking reasonable care to devise, implement and enforce a safe system of work.
That does not mean that the employer needs to safeguard its employees from all dangers that might conceivably arise in the course of employment. Determining what reasonable care involves requires you to consider two issues:
(a)First, was it reasonably foreseeable that the plaintiff might suffer an injury of the type he or she suffered?
(b)Second, if it was, did the defendant fail to act in the way a reasonable employer would act in response to that risk of injury?
Specifically, the way the plaintiff alleges negligence in this case is by submitting that the defendant has breached the duty of care that every employer owes to take reasonable care to avoid causing injury to its employees. In particular, the plaintiff argues that the defendant, Elbarki Nominees Pty Ltd, has failed to provide a ‘safe system of work’, including staff who are competent, respectful and who do not bully one another. The plaintiff alleges that Dr Elbarki bullied her, and that it was reasonably foreseeable that to engage in the conduct she says occurred might cause the plaintiff to suffer a diagnosable psychiatric injury.
The defendant denies that there was any negligence on the part of Dr Elbarki that was a cause of the plaintiff’s injury. In particular the defendant denies that Dr Elbarki “bullied” the plaintiff and argues that it was not reasonably foreseeable that the plaintiff might suffer a diagnosable psychiatric injury.
For the purposes of who the employer is in this case, it is accepted that Dr Elbarki ran a sole practitioner dental practice. Elbarki Nominees Pty Ltd is the corporation that was established as the employer, but for all intents and purposes Dr Elbarki was the guiding hand and mind of Elbarki Nominees Pty Ltd. She is, in essence Elbarki Nominees Pty Ltd, so if you find that Dr Elbarki was negligent, you will find that Elbarki Nominees was negligent. If, on the other hand you find that Dr Elbarki was not negligent, you will find that Elbarki Nominees was not negligent.
“Bullying”
Before returning to the directions about negligence, it is first necessary to say something about “bullying”. “Bullying” of itself is not a civil cause of action – the cause of action is negligence.
The plaintiff says the defendant is negligent because it breached its duty of care to the plaintiff by exposing her to bullying by Dr Elbarki. If there is no bullying, there is no negligence. If there is bullying, it does not necessarily mean that there is negligence. There are a number of matters that the plaintiff must prove on the balance of probabilities before you could answer jury question one in the affirmative. I will walk you through all of the things that the plaintiff must prove before you could answer question one in the affirmative, but the first thing that must be proved is that Dr Elbarki “bullied” the plaintiff.
Is there a legal definition of bullying?
The law does not define ‘bullying’. It is up to you, the jury, as reasonable members of the community to use your common sense and experience to decide what amounts to bullying. You must not use a dictionary definition. You will recall that I have directed you that you must not go searching for outside information to help you decide the case, and that includes looking for definitions or examples of what might be thought to be bullying elsewhere or in another context. It is your judgment that the parties want. We might all have different ideas about what constitutes bullying. You should know, however that the parties agree that the term bullying must have an element of repeated conduct. Here the plaintiff puts the case in negligence not as any one particular act, but as “the sum of the parts” – in other words, the cumulative effect of a number of allegedly unreasonable acts which if taken in isolation may not constitute bullying, but when considered as a whole do constitute bullying.
Another matter to consider is that, when it comes to the actions of bosses, managers and supervisors, one person’s encouragement or constructive criticism may be another’s bullying. You must look at the facts of the case objectively. It is your judgment, not the plaintiff’s, of what happened that matters. Once again, it is for you to decide whether what occurred, on all the evidence presented to you, was bullying.
You should also bear in mind that employers cannot prevent or eliminate friction between employees. Friction, banter and gibes between employees are common in workplaces… You will need to make a value judgment, using your common sense and experience, as to whether the conduct alleged was acceptable friction. This is simply part and parcel of your duty to decide whether the events alleged were bullying that a reasonable employer should have prevented.
The law recognises that there can be personality conflicts and disagreements that occur in workplaces. People can be wrong and communications between people in authority and fellow employees may sometimes be wrong headed or unfair - without the conduct sought to be impugned amounting to bullying or giving rise to an actionable wrong.[24]
[24]Lloyd v Healthscope Operations Pty Ltd [2021] VSCA 327 at [58]
You should also know that there are certain things that do NOT ordinarily amount to bullying.
Every employer has the right to give lawful and reasonable directions to its employees according to the circumstances of employment and the employer’s system and processes of work. The employer is in control of the working environment and owes a duty to all of its employees to take reasonable care not to expose them to unnecessary risk of injury.
In terms of this case, that means Dr Elbarki owed this duty of care to all of the employees, including both the plaintiff and Mrs Wright.
So, Dr Elbarki did not just owe a duty of care to the plaintiff. She also owed a number of other duties of care. She owed a duty of care to Debbie Wright to not expose her to the unnecessary reasonably foreseeable risk of injury such as might occur if an employee were to physically harm her.
As a dentist, Dr Elbarki also owed a duty of care towards her patients to keep them safe and not expose them to unnecessary risk of injury such as by infection caused by unclean dental instruments. In this regard, you heard, and it is not in dispute that Dr Elbarki had protocols for ensuring patient care, including hygiene controls, the keeping of records and the like. You have heard that there was a “SOP” (systems operating procedure manual). And, you know that it is not in dispute that an issue arose about infection control both in terms of tracking the root canal instruments and in terms of general hygiene such as handling the autoclave door. Dr Elbarki owed a duty of care to her patients to ensure that instruments were sterile so as to eliminate or reduce the risk of causing them a reasonably foreseeable risk of injury by infection.
You should also know that injury prevention is part of an employer’s responsibilities. The employer controls the workplace, the system of work adopted, the plant supplied and how employees are trained and supervised. Employers have wide powers over employees, including a power to warn, to command and to enforce their commands.
The employer has the right to warn, correct, supervise, train and discipline its employees if they breach lawful and reasonable directions given by the employer or if they act in such a way as to jeopardise the safety of the work environment and the people in it (for example, here we are talking about employees and patients) or if they do not adhere to the standards expected of them, for example by not following the employer’s system of work, or the work procedures or protocols.
If an employer lawfully directs, warns, corrects, supervises, trains or disciplines its employees, or is engaged in conduct designed to protect employees, and in this case patients, or to ensure compliance with the system of work, or to ensure that protocols are respected, it cannot amount to bullying because the duty of care is not engaged so as to give rise to a case in negligence if that conduct is done for bona fide (legitimate) reasons. The law says that even if the process is wrong, defective or unfair.[25]
[25]Govier v The Uniting Church in Australia Property Trust [2017] QCA 12
In addition to the matters I have just mentioned, the sorts of things that do not amount to bullying include:
•Giving genuine and reasonable instructions;
•setting reasonable performance goals;
•setting reasonable standards;
•rostering and allocating working hours where the requirements are reasonable; and
•informing an employee about inappropriate behaviour in an objective and confidential way.
If, on the other hand, a supervisory, disciplinary or any other such process I have mentioned is contrived for a malicious or ulterior purpose, the jury may then assess whether the process amounted to bullying because then the duty of care is engaged and can give rise to a case in negligence.[26]
[26]Govier v The Uniting Church in Australia Property Trust [2017] QCA 12
The first task is to decide ‘what happened’, and whether what happened amounts to bullying. Here you must decide, using your common sense and experience what amounts to bullying. This is simply to say that you must decide whether the plaintiff has proved on the balance of probabilities on the evidence that you accept that Dr Elbarki bullied the plaintiff.
Reasonable foreseeability
The next task is to decide whether the conduct that you find constituted “bullying” created a risk to the health and safety of Ms Vincent, namely did it create a reasonably foreseeable risk of a diagnosable psychiatric injury to her.
In any negligence claim such as this, the case is only actionable if the plaintiff suffered a reasonably foreseeable risk of a diagnosable psychiatric injury as a result of the defendant’s negligence.
It is not enough to show that there may have been a reasonably foreseeable risk of hurt feelings, momentary stress, upset or tears. The plaintiff must satisfy you on the balance of probabilities that there was a reasonably foreseeable risk of a diagnosable psychiatric injury of the kind suffered by the plaintiff.
You must decide whether it was reasonably foreseeable that Ms Vincent was at risk of suffering a diagnosable psychiatric injury by reason of the conduct you find constituted bullying.
The law says that something is reasonably foreseeable unless it is far-fetched or fanciful.
If the risk is not far-fetched or fanciful, then the reasonable employer is expected to consider whether any action is required by it in response to that risk.
This is an objective test. You are not deciding whether Dr Elbarki actually foresaw the risk of injury. You are deciding whether a reasonably careful employer in the situation would have foreseen the risk of injury.
You must not judge the situation with the benefit of hindsight. Just because an employee has been injured does not mean the injury was foreseeable.
…
If you are not satisfied on the balance of probabilities that the plaintiff’s psychiatric injury was a reasonably foreseeable consequence of the conduct, then the answer to jury question one is NO.
If, on the other hand, you are so satisfied, then you go on to consider whether the defendant failed to act as a reasonable employer in the position of Dr Elbarki would have acted to prevent the plaintiff’s exposure to that risk of reasonably foreseeable injury.
Response of the reasonable employer in the position of the defendant
This issue requires you to consider and balance a number of factors, including:
1.How likely is it that the identified risk would occur, i.e. that such-and-such an act or omission would give rise to a psychiatric injury?
2.How serious or severe would any injury or injuries be if the risk occurred?
3.How difficult or expensive would it have been to reduce or eliminate the risk (assuming, of course, that it would have been appropriate to reduce or eliminate the risk)?
The first part of this, the likelihood of the risk, involves a different question from whether an injury was reasonably foreseeable. Something is reasonably foreseeable even if there is a small risk of it occurring. But when deciding whether the defendant should have done anything about that risk, or what the defendant should have done about that risk, you take into account how big or small the risk was.
A small risk of serious injury is one thing. A big risk of less serious injury is another. A risk may be cheaply and easily reduced, or it may be very expensive and difficult to reduce. It is for you to decide what response, if any, was required of a reasonable employer in the defendant’s position, having regard to the magnitude of the risk, the nature of the potential injury associated with the risk, and any difficulty or cost of reducing the risk.
Again, you must consider this objectively. It is for you—as reasonable members of the community—to decide what a reasonable employer should have done in all the circumstances of the case. You do not need to decide whether the employer thought they were acting reasonably.
You should not approach this risk assessment in a mathematical fashion. You will need to make a value judgment as to what response, if any, was required of a reasonable employer in the defendant’s position at the relevant time.
In making this assessment, there are some things that you should bear in mind.
First, you must not judge this with the benefit of hindsight. You must consider what a reasonable employer would have done given the state of knowledge before the plaintiff was injured.
Second, negligence can involve both acts and omissions. That is, it can involve doing something that a reasonable employer would not do or failing to do something that a reasonable employer would do.
Third, you should also take into account that injury prevention is part of an employer’s responsibilities. As I said before, the employer controls the workplace, the system of work adopted, the plant supplied and how employees are trained and supervised. Employers have wide powers over employees, including a power to warn, to command and to enforce their commands.
The law does not require employers to prevent all forms of harm. It only requires them to prevent those that are reasonably foreseeable. Thus, the mere fact that an employee has been injured does not prove the employer was negligent, only that the employee was injured in circumstances in which the employer may have been negligent.
…
If you are not satisfied that the defendant failed to act as a reasonable employer would have acted to prevent the plaintiff’s exposure to the risk of reasonably foreseeable psychiatric injury, then the answer to jury question one is NO.
If on the other hand you are so satisfied, you go on to consider the question of causation.
CAUSATION
I will now turn to the “causation” part of the first jury question. This asks whether the defendant’s negligence was a cause of the plaintiff’s psychiatric injury, loss or damage?
The plaintiff must satisfy you on the balance of probabilities that the defendant’s negligence contributed to the plaintiff’s injuries in a way that is more than insignificant.
The defendant’s conduct does not need to be the sole cause. It may be one cause among others, provided its contribution is more than insignificant.
You must also consider whether the defendant’s negligence made a difference. If the plaintiff would have suffered the same injury/harm, even if the defendant had exercised reasonable care, then the defendant’s negligence was not a cause.
You must decide this issue by applying your common sense and experience to all of the evidence that has been put before you. You do not need to consider philosophical or scientific theories about when one thing causes another. Instead, you the jury must decide this issue. It is not a question to be answered by the experts, scientists, doctors, lawyers, or anyone else but you.
I repeat that it is not necessary for the plaintiff to prove that medical specialists regard the link between the negligence and the injuries as being more probable than not. It is for you, the jury, to decide whether the defendant’s negligence was a cause of the plaintiff’s injury. And you must do so by weighing all the evidence on the balance of probabilities.
You must decide whether the defendant’s doing what it ought not to have done, or its failure to do what it ought to have done, caused the plaintiff psychiatric injury, loss or damage on the balance of probabilities. For example, you must ask whether it is more likely than not that the defendant’s bullying (negligence) caused the plaintiff’s injury.
…
Turning to the question of “what happened” -------
…
You will need to consider each of the alleged acts to determine what happened, remembering that the burden of proof rests with the plaintiff. Ask yourselves in respect of each alleged act on the basis of the evidence that you accept, ‘what happened’? ‘Am I satisfied on the balance of probabilities that such and such happened?’ …
You must examine each alleged act individually, and also in combination.[27] In other words, you must consider all of the evidence that you accept.
[27]Stevens v DP World Melbourne Ltd supra at para [54]
…
RECAP:
1.Negligence is the cause of action, not bullying.
2.The plaintiff bears the onus/burden of proof.
3.The standard of proof is the balance of probabilities.
4.What constitutes “bullying” is to be determined by the jury, but there must be an element of repetition.
5.What is not bullying – includes reasonable and bona fide conduct of an employer to control the work environment, the system of work, to supervise, train, manage, direct and discipline employees.
6.The parties agree that the conduct must be repeated - Do any or a sufficient number of the acts amount to bullying?
7.If after considering all of the evidence relevant to each of the alleged acts you consider that none, or an insufficient number of them occurred to say the conduct was “repeated”, you would not be satisfied that Dr Elbarki bullied the plaintiff.
8.Reasonable foreseeability – did the conduct that you find constituted “bullying” create a risk to the health and safety of Ms Vincent, namely did it create a reasonably foreseeable risk of a diagnosable psychiatric injury to her?
9.Did the defendant fail to act as a reasonable employer in the position of Dr Elbarki would have acted to prevent the plaintiff’s exposure to that risk of reasonably foreseeable injury?
In respect of the two parts of jury question one – ask yourselves:
(a)Has the plaintiff satisfied me on the balance of probabilities that there was negligence on the part of the defendant? CONSIDER:
(i)Am I satisfied on the balance of probabilities that Dr Elbarki bullied the plaintiff?
(ii)If so, am I satisfied on the balance of probabilities that it was reasonably foreseeable that the plaintiff might suffer an injury of the type she suffered?
(iii)If so, am I satisfied on the balance of probabilities that the defendant failed to act in the way a reasonable employer in the defendant’s position would have acted in response to that risk of injury?
If the answer to any of these questions is “NO”, then the defendant is not liable and you should answer jury question one, “NO”.
If on the other hand, the answer to all of these questions is yes, then go on to consider the second part of jury question one:
(b)Has the plaintiff satisfied me on the balance of probabilities that the defendant’s negligence was a cause of the plaintiff’s psychiatric injury, loss and damage?
If the answer to this question is no, the defendant is not liable and you should answer jury question one, “NO”. …
If, on the other hand you are satisfied that the defendant’s negligence was a cause of the plaintiff’s psychiatric injury, loss and damage, then provided you also answered yes to the first part of jury question one, the defendant is liable and you should answer jury question one “YES”.
72On 18 July 2023, Mr Mighell submitted:
3.The Plaintiff alleges that she suffered her injury as a result of unacceptable conduct by Dr Elbarki in the course of her employment. It is not relevant whether this unacceptable conduct can be classified as bullying or harassment. It need only be conduct of a standard below that of a reasonable employer.
4.Because the Plaintiff relies on unacceptable conduct, as opposed to work stress, the risk of such injury arising as a consequence of such behaviour is acknowledged to be reasonably foreseeable. As observed by Beach, Macaulay JJA [and] J Forest AJA in Stevens v DP World Melbourne Ltd[28] -
“… Prevention of bullying or harassment in the workplace is unquestionably one of the modern responsibilities of an employer”.
5.Further, it is not relevant whether or not the Plaintiff exhibited signs of distress or vulnerability or were evident to the Defendant.[29]
6.The court must determine whether or not the conduct was of a type that was unacceptable. It is a value judgment that needs to be made by the Court.[30]
[28][2022] VSCA 285
[29]Stevens at paragraph 58
[30]Exhibit OO – Plaintiff’s Outline of Submissions dated 18 July 2023, paragraphs 3 - 6
73Mr Mighell conceded that the employer does have the rights referred to in the charge outlined above. I note that as the Amended Statement of Claim dated 15 August 2022 shows, this case was pleaded as a negligence claim with the particular of negligence at its core being the plaintiff’s exposure to bullying in the workplace. The plaintiff withdrew the allegations of “harassment” and “unreasonable treatment” as can also been seen in the Amended Statement of Claim.
74Paragraphs 8 and 9 of the Amended Statement of Claim plead:
8.Throughout the course of her employment, in the period from about late 2015 until on or about 4 July 2016, the Plaintiff sustained injury as a result of repetitive and sustained conduct
bullying, harassment and unreasonable treatmentperpetuated by Dr Elbarki towards her, which in the circumstances amount to and/or was ‘bullying’ (“the bullying”)
PARTICULARS
The Plaintiff relies upon those facts and incidents detailed in no-italics and no-highlighted sections of the Schedule marked ‘A’ attached to this pleading perpetuated by Dr Elbarki towards the Plaintiff, as jointly and severally amounting to bullying in the circumstances.
(a)The Plaintiff was subjected to purported disciplinary procedures without any, or any adequate procedural fairness;
Sub-particulars
The Plaintiff relies upon items 6, 10, 15, 21, 21, 25, 26, 27, 28, 33 of Schedule A.
(b)The Plaintiff was required to clean toilets and possum excrement in her Dental Nurses' Uniform in circumstances in which the Insured knew, or ought to have known, was in breach of good hygiene practices and would cause the Plaintiff mental harm;
Sub-particulars
The Plaintiff relies upon items 17 and 24 of Schedule A.
(c)The Plaintiff was physically
preventedrestricted from entering the reception by a barrier chain, from using the practice’s computers in the reception area and accessing the practice/surgery (by reason of the locks to the building being change in or about May 2016) from being able to perform the inherent requirements of her job;
Sub-particulars
The Plaintiff relies upon items 12, 23, 29 and 30 of Schedule A.
(d)The Plaintiff was subjected to repeated and sustained humiliation by demeaning, angry, and aggressive words and actions by Dr Elbarki;
Sub-particulars
The Plaintiff relies upon items 4, 5, 6, 7, 9, 10, 11, 12, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 33, 34, 39, 40 and 41 of Schedule A.
(e)The Plaintiff was unreasonably threatened with the loss of her job by Dr Elbarki;
Sub-particulars
The Plaintiff relies upon items 5, 6, 10, 15, 21, 24, 25, 26, 27, 28 and 33 of Schedule A.
(f)Dr Elbarki unreasonably sought to reduce the Plaintiff’s work hours at the practice;
Sub-particulars
The Plaintiff relies upon items 19, 20, 22 and 23 of Schedule A.
(g)Dr Elbarki unfairly allocated tasks to the Plaintiff which could not be reasonably undertaken or difficult to accomplish by the Plaintiff in the circumstances, thereby setting up the Plaintiff to fail in the attendance to such tasks;
Sub-particulars
The Plaintiff relies upon items 9, 10, 11, 16, 17, 18, 24, 29, 30, 31 and 34 (especially in respect of ‘tracking’ instruments used in root canal treatment, cleaning instruments and cleaning toilets) of Schedule A.
(h)Dr Elbarki not providing the Plaintiff with appropriate training and resources for her to properly undertake her job and then criticising the Plaintiff for any shortcomings of the Plaintiff in the discharge of these tasks;
Sub-particulars
The Plaintiff relies upon items 9, 10, 11, 16, 17, 18, 24, 29, 30, 31 and 34 (especially in respect of ‘tracking’ instruments used in root canal treatment, cleaning instruments and cleaning toilets) of Schedule A.
(i)The Plaintiff was treated differently to other employees by Dr Elbarki in terms of: restricting use of her mobile phone; confining the Plaintiff to only being permitted to speak about work-related matters in the workplace; interacting more formally with the Plaintiff than she did other employees; the usual daily pleasantries encountered in most workplaces (ie. such as saying “good morning/goodbye”, etc); and, socially excluding the Plaintiff from non-work related conversations in the workplace during work-breaks;
Sub-particulars
The Plaintiff relies upon items 4, 5, 6, 7, 11, 12, 19, 20, 21, 22, 29, 30, 39, 40 and 41 of Schedule A.
(j)The Plaintiff was unreasonably directed what to wear at work by Dr Elbarki;
Sub-particulars
The Plaintiff relies upon items 39, 40 and 41 of Schedule A.
(k)The Plaintiff was unreasonably micro-managed by Dr Elbarki in the undertaking of her employment;
Sub-particulars
The Plaintiff relies upon items 5, 11 and 17 of Schedule A.
(l)The Plaintiff was wrongfully and/or unfairly accused by Dr Elbarki for indiscretions she did not commit or was responsible for; and
Sub-particulars
The Plaintiff relies upon items 9, 10, 11, 12, 15, 16, 17 (in respect of ‘tracking’ instruments used in root canal treatment and cleaning instruments), 24, 25, 26, 27, 28, 29, 30 (in respect of the alleged ‘assault’) and 40 (in respect of the use of the autoclave) of Schedule A.
(m)Dr Elbarki failing to withdraw the three written warnings issued to the Plaintiff or apologise to the Plaintiff for the aforementioned behaviours and incidents;
Sub-particulars
The Plaintiff relies upon item 43 of Schedule A.
9.The
actionsbullying of the Insured has caused the Plaintiff to suffer injury:
75The Schedule to the Amended Statement of Claim identifies specific acts, which in combination are said to constitute bullying. Howsoever characterised, whether as “bullying” or as “unacceptable conduct”, it is the exposure to these acts that gives rise to the claim in negligence. As can be seen, no jury question refers to “bullying” or “unacceptable conduct.” I also note that paragraph one of the Plaintiff’s Amended Written Outline of Submissions dated 28 June 2023 states: “Foreseeability: the plaintiff’s claim against the Defendant [Elbarki Nominees Pty Ltd] has been squarely cast as a bullying case”, footnoting Amended Statement of Claim dated 15 August 2022, paragraphs 8, 9 and 10 and plaintiff’s Opening at Transcript page 15. In my opinion it is too late to recast the case as unacceptable conduct that falls short of bullying, a case that has not been pleaded and has not been defended. This is because although all bullying is unacceptable conduct, not all unacceptable conduct is bullying.
76Mr Broadfoot submitted that in order to succeed, the plaintiff must prove that there was a sign that the plaintiff was vulnerable to psychiatric injury, relying on the principles enunciated by the High Court in Koehler v Cerebos (Australia) Ltd.[31] That case concerned a worker who suffered psychiatric injury because of the nature and stress of the employment due to an excessive workload. It was not a bullying case. The Court held that an employer’s duty of care to avoid psychiatric injury to an employee depends on the nature and extent of the work being done by the particular employee and the signs given by that employee. The Court further held that where there is no reason to suspect that by performing a contract of employment an employee is at risk of psychiatric injury an employer’s insistence upon that performance cannot amount to a breach of duty of care to avoid causing psychiatric injury.[32]
[31](2005) 222 CLR 44
[32]See particularly at paragraphs 21, 29, 35, 36 and 41 of the judgment
77In the present case the plaintiff does not claim that it was the stress inherent in work as a dental assistant that caused her injury. Rather she claims it was the alleged bullying committed by Dr Elbarki that caused her injury. Her contract of employment did not contain a clause that the work involved being exposed to bullying. In these circumstances I do not consider that the plaintiff need establish that there were signs that she was not coping with alleged bullying. Rather, as mentioned above, the plaintiff must establish that the alleged conduct gave rise to a reasonably foreseeable risk of harm, namely, psychiatric injury, regardless of whether she showed obvious signs of vulnerability.
The plaintiff’s case
The plaintiff’s evidence[33]
[33]Trial transcript (T) evidence in chief – 75 – 251; cross-examination 258 – 505; re-examination 505 – 566
78I shall only briefly refer to the plaintiff’s evidence here, since I shall elaborate in more detail in relation to each specific allegation of bullying.
79The plaintiff was born in England in 1973. She immigrated to Australia in 1978. She married in 2001 and has two children, Emily (who gave evidence in these proceedings), and William. The plaintiff separated from her husband in 2012.
80The plaintiff was educated at Mount Eliza Secondary School. She completed year 10 in 1988. Her first job was in childcare.
81The plaintiff then obtained employment as a dental assistant, doing training on the job. She worked consistently until she had her children, although she obtained no formal qualifications in dental nursing.
82Prior to the birth of her children, the plaintiff had done some casual dental nursing for Dr Neil Hussey in Mornington. The plaintiff worked for Dr Hussey from 2008 until 2013 when Dr Hussey sold the practice to Elbarki Nominees Pty Ltd.
83While working for Dr Hussey, the plaintiff obtained a management certificate.
84The plaintiff enjoyed her work chairside assisting Dr Hussey. She stated that Dr Hussey was “great fun to work with”,[34] the patients were great and the job was close to home. The plaintiff was given “full autonomy”[35] maintaining hygiene, stock control, sterilisation, ordering stock, manning reception, doing basic cleaning, setting up for patients and controlling the music playlist.
[34]T78
[35]T79
85No prior disciplinary actions had been taken against the plaintiff and she stated that she was extremely satisfied with her job and her own performance in her more than 20 years’ experience as a dental assistant.
86Towards the end of 2013 Dr Hussey told the plaintiff that he would be retiring, taking a holiday and not returning to the practice. Dr Hussey said that Dr Elbarki would be purchasing the practice. Approximately a week later, the plaintiff met Dr Elbarki.
87The plaintiff commenced working for Elbarki Nominees Pty Ltd after Elbarki Nominees Pty Ltd purchased the dental practice from Dr Neil Hussey in 2013. Dr Hussey’s wife, Sharyn Hussey, had also worked at his practice, as the practice manager. When Elbarki Nominees Pty Ltd took over the practice, Mrs Hussey joined the new practice and became the practice manager.
88Dr Elbarki took over the practice in approximately August 2013. The plaintiff entered into a contract of employment with Elbarki Nominees Pty Ltd. Because the terms of the contract are referred to in correspondence passing between the parties in the time frame during which the plaintiff alleges she was bullied, it is necessary to refer to the terms of the contract of employment:[36]
[36]Exhibit A
Elbarki Nominees Pty. Ltd.,
…
… 18th November, 2013
Dear Claire,
RE: CLAIRE VINCENT, CONTRACT OF EMPLOYMENT
Further to our discussions I am pleased to offer you the position Dental Assistant at Dr. Heba Elbarki's Dental Surgery ''the Practice'' on the following terms and conditions:
1.Position
You will be employed in the position of Dental Assistant reporting to the Principal Dentist. Please note the practice may require you to perform other duties not included in your job description.
2.Hours of Work
You are employed on a Part Time basis. You are employed for 3 days per week. An unpaid lunch break shall normally be taken from 1 - 2 pm or may be varied in order to meet the requirements of the business.
There may be an occasion where it is necessary to change your hours or days of work in line with the needs of the business.
3.Remuneration
Your hourly rate is $24.50 and is above award.
4.Absences
Please note that if you are unable to attend for work for any reason, you must advise Dr. Elbarki as soon as reasonably practicable. You may be required to provide evidence to substantiate your absence.
5.Termination of Employment
All notice for termination is in accordance with the following NES scale;
Not more than 1 year 1 weeks’ notice
More than 1 year but less than 3 years 2 weeks’ notice
More than 3 years but less than 5 years 3 weeks’ notice
More than 5 years 4 weeks’ notice
If you are over 45 years old and have completed at least 2 years continuous service, the Practice will increase the notice period by 1 week.
On termination of your employment with the Practice, you will be required to return any security passes, uniforms, credit cards or any other property belonging to the Practice in your possession. The Practice reserves the right to take legal action to recover the value of any such items not returned.
In the case of serious misconduct your employment may be terminated by the Practice without notice or payment in lieu of notice. Examples of serious misconduct include, but are not limited to stealing, sexual harassment, violence, criminal offences, neglect of duties, breach of trust, breach of confidentiality, breach of safety procedures, being under the influence of alcohol or illegal substances, failure to hold or maintain any required licences or qualifications.
6.Duty to Company
You shall faithfully serve the Practice, and use your best endeavours to promote its best interests. You shall devote the whole of your time and attention during your working hours to your responsibilities and duties as Dental Assistant. You shall observe all policies and procedures of the Practice as varied from time to time.
Except with the prior written approval of the Practice, you must not directly or indirectly approach, canvass, solicit or endeavour to entice away from the Practice any client, employee or business associate.
You shall recognise that as an employee you have an obligation not to bring yourself or the employer into disrepute through your use of computers, social or any other media.
7.Confidentiality
You must keep confidential all secrets and information which become known to you in circumstances where you know or ought to have known the information is to be treated as confidential. This includes but is not limited to client or staff records/client lists and names of client, staff or business associate contacts.
It is expressly forbidden to discuss sensitive information revealed by clients or staff outside the Practice. Sensitive information should only be discussed with other employees where absolutely necessary.
Information of copies of information must not be removed from our premises, except where your employment requires it and where the Practice has given consent.
Can you please confirm your agreement to the above terms and conditions by signing below?
I look forward to having a long and mutually rewarding association. Yours sincerely,
Dr. Heba Elbarki on behalf of Elbarki Nominees Pty. Ltd.
I HEREBY ACCEPT THE ABOVE TERMS AND CONDITIONS OF MY CONTRACT OF EMPLOYMENT
[Signed by the plaintiff and dated 18 November 2013]
89Dr Elbarki testified that the form of the contract was copied from contracts Dr Hussey had made with his staff.[37] That evidence is not challenged.
[37]T890
90The plaintiff’s outlined her employment history as follows:
91Her first job was as a junior dental assistant with Dr Derry Rogers, where she undertook basic training on the job. After that she accepted a position with Dr Geoffrey Kelly where she stayed for approximately four and one half years, working chairside. Her next job was at the Rosebud Dental Group, where she worked for approximately eight months chairside assisting. She then returned to work for Dr Kelly for another couple of years. She then worked for a dental agency where she was allocated to various clinics on an as needs basis. After the birth of her son, the plaintiff resumed work as an agency dental assistant. One of the positions she was assigned was at the naval base in Hastings. While there, she was offered a permanent job. She remained there for approximately two to two and one half years. The plaintiff had previously done agency work for Dr Hussey and obtained full-time employment with him in 2008, where she remained until Elbarki Nominees Pty Ltd purchased the practice. The plaintiff stated that she has no formal qualifications as a dental nurse, adding “[m]ost of my positions I attained by experience”. [38]
[38] T78
92The plaintiff described her relationship with Dr Elbarki for the first two years as “totally amicable”[39] with no criticism being levelled against her.
[39]T90
93As to her mental health, the plaintiff said that until the end of 2015 she had had no problems. She had had no prior mental health disorders. “I was happy, friendly… bubbly and funny”.[40] The plaintiff stated that up until this time she had had no medication or treatment for psychiatric issues, nor did she have any problems with her blood pressure.
[40]T91
94The plaintiff stated that thereafter the practice was starting to lose some long-standing patients. She said a lot of changes were occurring. It had previously been a busy practice with a three to four week waiting list for appointments except in the case of emergency consultations. Dr Hussey had previously closed his books and was not accepting any new patients. According to the plaintiff, by the end of 2015 there were substantial gaps in the appointment book, there were cancellations and there was limited work available for Dr Elbarki on the days that she chose to work. The plaintiff estimated that by 2015 the practice was approximately half as busy as it was when Dr Hussey owned it.
95The plaintiff stated that Dr Hussey did not do root canal treatment, however Dr Elbarki did perform some root canal treatment. The plaintiff stated that she received no training as to how to handle instruments for root canal treatment.
96By the end of 2015, the plaintiff was working four days a week, Mondays, Tuesdays, Thursdays and Fridays generally from 8.45am until 5.00pm, but she could finish earlier if there were no patients, and all work was done.
97Dr Hussey’s wife, Sharyn Hussey, had worked in the practice since 1976. As mentioned earlier, when the practice was sold to Elbarki Nominees Pty Ltd, Mrs Hussey stayed on, working approximately three days per week. Towards the end of 2015 Mrs Hussey reduced her hours, no longer working on Mondays and Fridays. At this time, Mrs Debbie Wright joined the practice to cover days in place of Mrs Hussey. Initially, Mrs Wright worked one day per week, but by mid-2016 her hours increased, particularly when Mrs Hussey took extended leave.
98In approximately early 2015 Dr Elbarki employed Mrs Wendy Cole (previously known as Wendy Jackson) as a dental assistant. Mrs Cole worked at the practice on Wednesday mornings and on Thursdays. Mrs Cole had previously worked with Dr Elbarki in another dental practice.
99According to the plaintiff, once Mrs Wright started working at the practice Dr Elbarki’s mood started to become a little erratic. She claimed that Dr Elbarki made comments about the financial status of the practice which the plaintiff understood to mean that the practice was in financial difficulties. After this, the plaintiff described a series of incidents which she alleges constituted bullying and which were a cause of mental injury.
100The first such incident occurred in late 2015 in the presence of Mrs Cole and Mrs Wright.[41] The plaintiff stated that she asked if she could leave work early and Dr Elbarki responded “for fuck’s sake, just go, just leave”.[42] The plaintiff said she was shocked because Dr Elbarki “barked” at her.[43] She had never spoken to the plaintiff like that before. The plaintiff got her bag and left. I shall refer to this incident in more detail later, under heading “1st incident…”.
[41]According to the way the question was framed by Mr Hayes at T97
[42]T97
[43]T97
101After this incident, according to the plaintiff, Dr Elbarki’s mood became erratic. She was not personable in the mornings, she was not laughing or saying “good morning”, she was just “very businesslike”.[44]
[44]T98
102The plaintiff stated that in December 2015 Dr Elbarki started to monitor the plaintiff closely. “All of a sudden infection control became paramount”.[45] The plaintiff stated that Dr Elbarki watched her perform her hygiene-control duties. She claimed that Dr Elbarki would pretend to be doing something when in reality she was watching the plaintiff.
[45]T98
103The second incident concerns a conversation between Dr Elbarki and Mrs Wendy Cole when Dr Elbarki was looking for work at other practices. According to the plaintiff, Dr Elbarki said to Mrs Cole that she had found no jobs for herself but there was one that “Claire would be great at”.[46] The plaintiff stated that this conversation made her feel anxious since she was a single mother and the thought of losing her job caused her a lot of stress. At the time her son was aged 17 years and her daughter was aged 12 years. I shall describe this incident in more detail later under heading “2nd incident…”.
[46]T100
104The plaintiff referred to another occasion when she asked to leave work early. In response she said that Dr Elbarki said “What do you want to do? Going to get a fake tan?”[47] The plaintiff said she could not understand why Dr Elbarki was being sarcastic and “snapping”.[48]
[47]T102
[48]T102
105The third incident occurred on 27 January 2016. It was a Wednesday morning, a day that the plaintiff did not usually work. Mrs Cole usually worked on Wednesday mornings, however on this occasion the plaintiff was asked to fill in for Mrs Cole. Dr Elbarki did not work on Wednesdays. The plaintiff agreed to work that morning. She arrived at work between 8.45am and 9.00am. She stated that she was not sure if she was meant to remain at work until 12.30pm or 1.00pm. According to the plaintiff, at approximately 12.56pm or 12.57pm the plaintiff started turning things off in the practice and switched the telephone to the answering machine. She then went home. Once she arrived home, she received a text message from Dr Elbarki. The plaintiff responded by text message apologising, saying she had meant no wrong and was not trying to leave work early. She claimed the clock on the wall in the practice was three or four minutes out. I shall refer to this incident in more detail under heading “3rd incident…”.
106The following day, according to the plaintiff, Dr Elbarki’s manner was business-like. The plaintiff claimed that when she arrived at work she noticed the sign on the door setting out the practice hours had been changed from 9.00am – 12.30pm. It now read that Wednesday hours were 9.00am – 1.00pm.[49] The plaintiff also noticed that the clock on the wall had been adjusted. She described the atmosphere at work as cold as there was no friendliness.
[49]T125
107On 1 February 2016, Dr Elbarki wrote a letter to the plaintiff expressing a number of concerns about the plaintiff’s conduct and attitude to her work. This document was referred to by the parties as the first warning letter and was tendered as Exhibit C.
108The plaintiff stated she was surprised to receive the letter, believing the contents did not warrant a written warning. She stated that in her 26 years’ experience as a dental assistant she had received neither an oral nor a written warning. She was now starting to become distressed. She felt Dr Elbarki was “nit-picking”[50] over trivial matters and it was “ridiculous”.[51] The plaintiff felt “rattled”[52] and was on “tenterhooks”.[53] She believed she was required to formulate a response to the warning letter.
[50] T127
[51]T127
[52] T128
[53]T128
109Although the plaintiff could not recall precisely when, at some time between February and April 2016, Dr Elbarki wanted everything to be kept on a “need to speak basis”[54] and then only when it related to work. She stated that Dr Elbarki said “my practice, my rules”.[55] This is the subject of the fourth allegation of bullying, and I shall elaborate under heading “4th incident...”.
[54]T129
[55]T131
110On 15 April 2016 the plaintiff commenced three weeks’ annual leave. She took a trip to the outback, and then travelled to Broome by car. The plaintiff returned to work on 5 May 2016. She arrived late at work to find Dr Elbarki sitting in the reception area working at a computer. According to the plaintiff, Dr Elbarki “barked”[56] at her saying the plaintiff was late. The plaintiff thought Dr Elbarki was angry. She did not ask the plaintiff how her holiday was. Dr Elbarki said that there would be a meeting with the plaintiff and Mrs Cole about tracking endodontic instruments used for root canal treatment. According to the plaintiff, she had not previously been told that these instruments needed to be tracked.
[56]T135
111The meeting was held later that day and concerned an incident that had occurred while the plaintiff was on leave. Endodontic instruments were required to be used to treat an emergency patient, and the temporary dental nurse who had filled in that day realised the instruments had not been tracked properly. This was a major breach in hygiene protocol. According to the plaintiff, both she and Mrs Cole were admonished and were not permitted to speak in their own defence.
112The plaintiff claimed that during the meeting Dr Elbarki told the plaintiff that from then on she would be “micro-managing” [57] the plaintiff and that both she and Mrs Cole would be receiving a written warning. I shall elaborate further on this incident later under heading “5th incident…”. The plaintiff stated that Dr Elbarki was angry all day. The plaintiff felt stressed and unnerved, saying she had never been accused of wrongdoing.[58]
25. On my return to work on 30th May 2016, you immediately started to micro-manage me in a threatening and intimidating way.
26. Since 30th May 2016, you have consistently followed me around the workplace, being at least within 1.5m of me up to 90% of the day.
a.If I go from the sterilisation room, you stand in the doorway of the room.
b.If I want to walk back into surgery, you step aside and when I walk into the surgery, you turn to watch me in the surgery.
c.You constantly follow me around.
d.Even when I sit in the surgery and read manuals, you sit in the corner and watch me.
e.You constantly make your presence felt.
f.The only time I am free of you is when I go to the toilet or when I go home at lunchtime.
27. I object to this unreasonable, threatening and intimidating behaviour in the guise of performance management.
a.I say that it is not only intimidating, humiliating and unnecessary, but it is all for an improper purpose and that is to engineer my resignation or termination because:
i. Your business is failing financially and you want to get rid of me to reduce costs, and
ii. You do not want me to be a witness in any investigation by the Dental Board or your insurers into your own breach of infection control guidelines on 19 April 2016.
Infection Control Guidelines and Use of Gauze
28. You have required me to scrub remnants of cement and filling material from instruments for years without an ultrasonic bath or a magnifying light to help.
29. Since 30 May 2016, you have constantly and unreasonably micro-managed this, repeatedly handing back instruments allegedly with a tiny speck of remnant cement and told me to “scrub harder.”
30. On Thursday 30th June 2016, I told you that infection control guidelines recommended that instruments be wiped with damp gauze by the dentist to remove cement and debris before it hardened and that this would reduce excessive scrubbing of hardened cement after the procedure.
31. You then looked at the guidelines yourself, then told me words to the effect, “It does not state that the dentist has to do it. You do it and stop being lazy.”
32. I said to you that it is evident from the guidelines that the dentist does it because they say to place the gauze on the bracket table, or to have adhesive-backed foam on the bracket table so that instruments can be wiped singlehandedly.
a.The “bracket table” is the dentist’s table with the dentist’s instruments on the dentist’s side.
b.I am on the the other side of the bracket table.
c.I say that ADA Guideline, section D, “Instrument Reprocessing” says:
“Cleaning: It is recommended that gross soil be removed from instruments by wiping them at the chairside onto an adhesive backed sponge or dampened gauze on the bracket table using a one-handed method to prevent the risk of sharps injury during the wiping action.”
33. This guideline is clearly referring to the dentist because it refers to “the bracket table” which is on the dentist’s side.
34. Nevertheless, on Thursday 30th June 2016:
a.You told me to come around to your bracket table on your side and wipe your instruments with gauze because you point-blank refused to do it.
b.I said, “But by the time I get around there, the cement has started to set.”
c.You said, “I don’t care. It’s your job.”
d.I said, “OK, I will place the gauze on the bracket table on your side and if you choose not to use it, that is up to you.”
e.The patient then came in and I put the gauze on your bracket table.
f.You picked the gauze up and threw it on my work bench.
g.I picked the gauze up and put it back on your bracket table.
h.You then put the gauze back on my bench.
i.I picked up the gauze and said to you words to the effect, “Heba, are you telling me that you won’t comply with a simple request to use this damp gauze to wipe off cement?”
j.You said to me, “No, it’s your job.”
35. I say the position is this:
a.The bracket table is on your side, it is your table and it is your responsibility.
b.The guidelines say to put gauze on your bracket table.
c.It is obtuse to say that if the guidelines don’t specify whether it is the dentist or the assistant that wipes the instruments on your bracket table, then it must be the assistant.
d.It is particularly obtuse to say this because:
i. The assistant is on the other side of the chair.
ii. The gauze wipes are on your bracket table on your side.
iii. By the time the assistant gets around to your side, the cement is starting to harden on the instrument.
iv. If I were to come around to your side four or five times in a procedure, the patient would have no suction because I had to put it down to clean your instruments on your table on your side.
36. Even your dental consultant, Rowena, said to you on 31st May 2016 in front of me, “Heba, make sure that you remove any excess filling material from your instruments at the time of the procedure.”
37. I say that making me wipe your instruments on your side of the chair is deliberate nit-picking:
a.You are deliberately being provocative and difficult.
b.You are refusing to wipe your own instruments and you are allowing cement to harden on them so that I have to scrub it off later.
c.You refuse to buy an ultrasonic cleaner to remove hardened cement, so that I have to “scrub harder.”
d.You then insult me by calling me “lazy.”
Other Objections to Your Behaviour
38. In addition to the objections above, I also object being the only member of staff made to clean toilets instead of having the dignity of doing the job they were employed to do.
39. I object to having my employment contract unilaterally varied by removing me as receptionist and turning me into your cleaning lady.
a.I particularly object to you making me clean the toilets and clean up possum excrement from the front verandah, then turn around and treat patients, especially in the light of your sudden focus on infection control procedures since you treated a root canal patient without tracking instruments on 19th April 2016 when I was on holidays but blamed me anyway.
40. I object to you placing a chain across the door to reception to prevent me from going in there.
41. I object to being the only member of staff variously being banned from:
a.Talking to patients.
b.Talking to other staff.
c.Using computers.
d.Reading procedures manuals at work, but being told I had to read on my own time without pay.
42. I object to you changing the locks at work and locking me out.
43. I object to being deprived of earning a wage when I am told not to come to work because you are suddenly doing a course or going to an “appointment.”
44. I object to getting written warnings for matters such as allegedly leaving for lunch four minutes early and all the other trivial and contrived matters for which you have no evidence but for which you purport to give me warnings under the guise of “performance management.”
45. l object to being accused of “assaulting” other members of staff and being found guilty of assault by you in circumstances where you have no evidence, no witnesses and where you act as the investigator, the judge and the jury – all in complete disregard of the rules of natural justice.
46. I object to you banning my Union representative from being my support person in your disciplinary meetings, simply because he is a member of a union.
47. I say that you had no problems at all for more than two years with my performance until your business started to fail in January 2016.
a.Since then, you have conducted a relentless and unmitigated campaign against me to force me to resign or to engineer my dismissal, such campaign bearing no relation at all to my work performance.
b.Your campaign against me increased in intensity when you said that you reported yourself to the Dental Board and your PI insurers in April 2016 because you do not want me as a witness in any investigation.
Next Steps
48. I require you to give me a written undertaking by the close of business on Thursday 7th July 2016, that you will immediately:
a.Stop your threatening and intimidating behaviour.
b.Stop your repeated unreasonable behaviour against me, being that carried out under the guise of “performance management” and otherwise.
c.Withdraw your purported written warnings.
d.Stop arbitrarily applying standards and disciplinary measures towards me and me alone out of all your staff.
e.Stop your unreasonable, threatening and intimidating “micro-management.”
f.Give me back my job as a receptionist as of Thursday 7th July 2016.
g.Stop treating me as the cleaner of toilets and floors and get yourself a cleaning lady.
h.Stop your victimising, freezing out, verbal abuse and emotional abuse.
i.Allow my Union representative onto the premises to be my support person in all your purported investigations and disciplinary meetings.
49. I also require you to apologise in writing by close of business on Thursday 7th July 2016 for saying I have a “sagging arse” and calling me “lazy.”
Yours faithfully
Claire Vincent
631Dr Elbarki denied that she used some of the words attributed to her in the plaintiff’s letter of 4 July 2016.[526] She denied that she said: “I note that you have failed to change your pants as per my direction on Friday” or that she said: “This is my practice and I will say and do as I want. You refusing to change your pants is insubordination”.[527] She agreed that she used the word “arse” instead of “posterior” because she felt that was language that the plaintiff would understand since the plaintiff “swears all the time”.[528]
[526]Exhibit HH
[527]T1020
[528]T1020
632When cross-examining Dr Elbarki Mr Hayes suggested that the plaintiff did not respond to Dr Elbarki with “you’re talking to me about sagging arse”, however Dr Elbarki maintained that she did:
Of course she did, she makes fun of me on a regular basis.[529]
[529]T1352
633Dr Elbarki explained that when she said “sagging arse” she was referring to the plaintiff’s trousers and not her posterior, and that she spoke in a manner commensurate with the plaintiff’s vernacular:[530] “that’s the way she normally talks to everyone…. I knew she was going to be rude.”[531]
[530]T1354
[531]T1355
634Dr Elbarki stated that when the plaintiff said “you’re talking to me about sagging arse?”, “she meant my arse, not my pants.”[532]
[532]T1355
635Dr Elbarki denied that she was exerting pressure on the plaintiff to resign or that she intended to humiliate or harass her: “This wasn’t humiliation and she talked back quite fine. She was not hurt.”[533]
[533]T1356
636Mrs Wright testified that the plaintiff wore tracksuit pants to work.[534] Shown exhibit GG, the photograph tendered by the plaintiff, she stated that these were not the pants that the plaintiff wore to work.[535] She stated that the plaintiff wore tailored pants to work when she was working at reception.[536]
[534]T1397
[535]T1397; 1470
[536]T1397
637There is conflicting evidence about whether the plaintiff wore the pants depicted in exhibit GG, the photograph she took proximate to the commencement of the trial. The plaintiff is the only one who states these are the pants that she wore on 1 and 4 July 2016. If these were the trousers that she wore for two years, and her daughter saw her every day for those two years, it is remarkable that her daughter was unable to identify them as the plaintiff’s work pants.
638Regardless of which pants the plaintiff wore to work, it is clear that she wore the same type of pants for more than two years before this incident.
639As employer in a dental surgery, Dr Elbarki was entitled to set the dress code for her staff. If Mrs Wright’s evidence is to be accepted, the plaintiff owned tailored pants, which she could have worn to work on Monday 4 July 2016.
640Whatever pants the plaintiff wore on Monday 4 July 2016, it provoked a response from Dr Elbarki. I consider Dr Elbarki’s comments to have been rude and offensive, but I also accept that the plaintiff responded in like manner. Both acted inappropriately.
641While Dr Elbarki was entitled to set the dress code for her staff to accord with what she expected for dental nurses in a surgery, she should not have made such a disrespectful comment to the plaintiff. No doubt she was frustrated with all that had gone before, however that did not justify her actions. That said, it was a one-off incident.
642Since the parties agreed that bullying requires repeated conduct, and because I have not found any of the previous incidents amount to bullying, this isolated incident occurring on the plaintiff’s last day of work cannot amount to bullying.
Analysis – was the defendant negligent?
643I have considered each of the individual incidents said to establish negligence on the part of the employer. I am not satisfied that standing alone, any of them establish negligence.
644Turning to the question of whether in combination a sufficient number of the incidents establish negligence, I am not satisfied that overall they paint a picture of an employer falling short of the standard of care expected of a reasonable employer in the position of Dr Elbarki. Nor do they show that Dr Elbarki abused any rights as an employer for an improper or collateral purpose.
645It is convenient to consider the incidents by categories:
Directions
646I have previously mentioned that as employer, Dr Elbarki had the right to give lawful directions to the plaintiff.
647As earlier noted, the plaintiff testified that she would “override” any directions given to her if she disagreed with them. The plaintiff disagreed with the direction to clean the toilet on 3 June 2016, so she did not. Instead, she chose to access the computer at reception searching for details relating to a patient who was treated when the plaintiff was away on holidays, a patient who was not being seen that day. She did this instead of assisting chairside when Dr Elbarki had a patient in the chair.
648Dr Elbarki directed the plaintiff not to come to work on the morning of 2 June 2016, but in flagrant breach of that direction, the plaintiff attended for work, then admonished Dr Elbarki.
649Dr Elbarki directed the plaintiff to clean the instruments to ensure that there was no debris on them, but the plaintiff attempted to pass the obligation of cleaning instruments to Dr Elbarki when she placed gauze on her bracket table and told her to wipe the cement off.
650After the alleged assault on Mrs Wright, Dr Elbarki directed the plaintiff not to enter the reception area when Mrs Wright was there. According to Mrs Wright, even after the direction had been given and the chain had been installed, the plaintiff unhooked the chain and entered the reception area.
651Dr Elbarki made it clear that she did not want expired stock on the shelves. Using current stock is not only her right as employer, but it is a measure necessary to ensure patient safety. It is to Dr Elbarki’s credit that she would rather discard stock valued at approximately $5,000 or $6,000 than to use it. Despite this, the plaintiff chose to leave the expired stock on the shelves, requiring Dr Elbarki to overhaul the sterilisation room and position stock so that she could see the expiry dates for herself.
652Despite holding a meeting as far back as 1 May 2015 in which the excessive use of mobile phones was discussed, the plaintiff continued to use her mobile phone to excess, then complained that this rule did not apply to Mrs Hussey.
653I note that in her correspondence, the plaintiff did not regard some of the directions given to her orally as binding, dismissing them as passing comments in conversation.
654I am not satisfied in all the circumstances that the directions that Dr Elbarki gave of which the plaintiff complains were unreasonable or unjustified. Nor was it unreasonable to take measures to enforce lawful directions when the plaintiff had demonstrated her intention to disregard them.
655Attention must also be given to the position Dr Elbarki found herself in. She was dealing with a querulous employee who was combative and unwilling to abide by directions. She had an employee who would not accept responsibility for her actions, and who instead seemed to adopt the stance that attack is the best form of defence.
Supervision and training
656Dr Elbarki had the lawful right to supervise and train the plaintiff. They were working in a medical service where patient care and safety is paramount.
657The plaintiff complains that she was micro-managed, yet also complains that she never received adequate training. The fact is that the plaintiff was unwilling to undergo further training when it was offered to her. Despite being responsible for the Systems Operating Procedure Manual the plaintiff claimed a lack of awareness of the hygiene control procedures contained in it.
658Dr Elbarki’s supervision of the plaintiff when she was cleaning instruments was not only justified, but was obligatory in the circumstances where there had been a major breach of such magnitude that Dr Elbarki self-reported to AHPRA. Ultimate responsibility for patient safety rested with Dr Elbarki. Labelling supervision of this nature as “micro-managing” is meaningless. The real question is whether the supervision was lawful and reasonable. I am satisfied that it was.
Disciplinary actions
659If the plaintiff breached safety standards or exposed her fellow employees to risk of injury, such as by assault, Dr Elbarki was entitled as a matter of law to treat these as disciplinary matters.
660There is no dispute that there were concerns about hygiene standards. Dr Elbarki was entitled to take any necessary reasonable actions to maintain hygiene and safety standards. I see nothing unreasonable in her conduct in this regard.
661There is also no dispute that Mrs Wright alleged assault against the plaintiff and that she told Dr Elbarki that she was fearful of the plaintiff. Incidents 10, 11 and 13 are all interconnected. That is to say, all of these incidents arise from Mrs Wright’s allegation that the plaintiff assaulted her. In response to the allegation, Dr Elbarki heard from both Mrs Wright and the plaintiff. Mrs Wright stated that she had been assaulted and Dr Elbarki observed her as appearing “weird”. Mrs Wright stated that she was having palpitations. Dr Elbarki asked her whether the matter should be reported to police, and whether she should take Mrs Wright to a doctor or a hospital. On these facts, Dr Elbarki had received a serious disclosure of assault from Mrs Wright and she had made her own observations about Mrs Wright’s apparent state of unease.
662When Dr Elbarki raised the allegation of assault with the plaintiff, the plaintiff denied it, making a cross-allegation that Mrs Wright had touched her hand when trying to seize the computer mouse.
663Dr Elbarki issued the plaintiff with an immediate suspension on full pay, pending further investigation. She did not fire her.
664Dr Elbarki asked Mrs Wright for an incident report. On 9 June 2016, she offered the plaintiff the opportunity to also provide an incident report.
665In the period of suspension, Dr Elbarki and Mrs Wright installed a chain on the access door to reception. On 9 June 2016, a meeting was held to discuss the alleged assault. Adequate notice was given of the date and purpose of the meeting.
666Both Mrs Wright and the plaintiff attended the meeting with Dr Elbarki. The plaintiff invited her union representative to attend, but Dr Elbarki refused to permit him entry, although she offered the plaintiff the opportunity to have a support person attend with her.
667During the meeting, Dr Elbarki offered the plaintiff the opportunity to be heard, which the plaintiff declined. Instead, she handed Dr Elbarki a letter, which included a statement containing her version of events.
668Dr Elbarki accepted Mrs Wright’s version, finding the allegation of assault made out. Instead of firing the plaintiff, she issued the third warning letter.
669There can be no doubt that Mrs Wright’s allegation raised a serious matter. Dr Elbarki was under a duty to keep all of her employees safe from reasonably foreseeable risk of injury. She had an allegation of assault and she was duty bound to do something about it.
670It is not disputed that Dr Elbarki commenced a disciplinary process. I have referred to the applicable legal principles.
671Mr Hayes submits that this was no bona fide disciplinary procedure; rather, it was trumped up for an improper purpose. While accepting Mrs Wright as an honest witness he invited the Court to draw the inference that her evidence was biased.[537]
[537]T1944-1945
672Whether the incident occurred the way that Mrs Wright testified it did is beside the point. The issue is how Dr Elbarki responded to the allegation. It was not put to either Mrs Wright or Dr Elbarki that they colluded to manufacture the story, which account, in any event, never led to the plaintiff’s dismissal.
673In these circumstances, any reasonable employer in the position of Dr Elbarki would take action to investigate the allegation, to protect an employee who is possibly vulnerable to further assault or distress, and then make a determination about what to do.
674Dr Elbarki ultimately accepted Mrs Wright’s account and she took measures to keep the peace to enable both employees to remain at work.
675I am satisfied that Dr Elbarki engaged in justified disciplinary processes when she issued her warning letters to the plaintiff, when she investigated the plaintiff’s alleged misconduct, and when she suspended the plaintiff pending her investigation into the alleged assault on Mrs Wright.
676I am not satisfied that it was unreasonable for Dr Elbarki to engage in any of these disciplinary processes.
Isolated incidents
677The first incident is when Dr Elbarki told the plaintiff and Mrs Cole to leave using a swear word. I have found that standing alone, this incident is not an example of bullying. Rather it is an outburst of a frustrated person who has overheard her employees repeatedly discussing with each other their desire to leave work early.
678The second incident, in which the plaintiff alleges that Dr Elbarki said that there were lots of jobs “Claire would be good at”, in my judgment was a misunderstanding. I accept Dr Elbarki’s version of events.
679In the autoclave incident, the plaintiff did not refuse to clean the autoclave door after being directed to do so by Dr Elbarki. I do not consider this to be an incident of bullying. Rather, either party might have made an innocent mistake. It was reasonable for Dr Elbarki to err on the side of caution and direct the plaintiff to clean the autoclave door.
680The final isolated episode is the pants incident on 4 July 2016, the plaintiff’s last day of work. Although it was offensive for Dr Elbarki to say that she no longer wanted to look at the plaintiff’s “sagging arse” it was conduct of a type that was a one-off personal remark.
Conclusion
681Having considered the incidents in isolation and in combination, and taken account of the totality of the evidence, I am not satisfied that Dr Elbarki engaged in bullying conduct. Nor am I satisfied that there is any negligence on the part of the employer.
Causation
682I have arrived at the conclusion that none of the conduct complained of, either in isolation or when viewed in combination, amounts to bullying. Nor am I satisfied to the requisite degree that Dr Elbarki’s conduct was unreasonable or unacceptable in all the circumstances.
683As mentioned earlier, the plaintiff’s view of what occurred was coloured by her erroneous belief that Dr Elbarki was trying to get rid of her and that her agenda was to engage in conduct to achieve that end.
684I have found that there was no negligence on the part of the employer. Accordingly, the element of causation is not satisfied.
Final conclusion and orders
685For the reasons explained above, question one left for my determination must be answered in the negative. I am not satisfied that there was any negligence on the part of the employer that was a cause of the plaintiff’s injury, loss and damage.
686It is therefore unnecessary to answer question two, the damages question.
687I propose to enter judgment in favour of the defendant.
688I shall hear the parties on the question of costs.
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