Misconduct complaints

In a clear warning to employers that they must take action on all complaints of misconduct, the NSW Supreme Court has found two companies liable for damages to a worker who was subjected to five years of abuse by his manager.

The worker in the case was employed by Group 4 Securitas as assistant security and fire control manager at the head office of Nationwide News Limited. He claimed damages for post traumatic stress disorder and major depression, which he alleged was the result of almost five years of abuse and racial vilification perpetrated by his manager.

The Court heard that the abuse began shortly after the assistant began working for the manager, when he decided not to allow the manager's father and brother to build a house for him. The manager called the assistant "monkey face", "poofter" and "black c*nt" and threatened to have him transferred. From then on, the abuse included physical and verbal threats, insults and instances of sexual abuse. Some of the incidents occurred in the presence of other Group 4 and News employees.

It continued until early 1997, when the manager was dismissed following an investigation for sexual harassment, which revealed his wider misconduct. The assistant ceased work in early 1998 on his doctors' advice after his condition deteriorated to the point where he could no longer perform his work.

Justice Michael Adams found the manager's conduct was so brutal, demeaning and unrelenting that it was reasonably foreseeable that, if it continued for a significant period of time, it would be likely to cause significant, recognisable psychiatric injury.

Despite the assistant claiming that he complained to Group 4 about the manager a number of times and was told to "hang in there" so it wouldn't lose the contract, Justice Adams found it was unlikely that he had reported the actual abuse. Instead, he accepted the evidence of the assistant's Group 4 supervisor, who said the assistant had complained to him about unreasonable work demands but not about the manager's misconduct. Justice Adams said general complaints about what amounted to little more than unreasonable demands "would not, I think, alert any reasonable employer to the risk of an employee suffering a mental illness as a result".

Justice Adams found that the only reasonable inference to draw was that the company hadn't paid sufficient attention to the practical consequences of harassment and bullying at work, "in particular the likelihood that it would be associated by implicit or explicit threats that complaints would not be listened to or that a complainant's employment might be at risk if he or she took action".

He awarded the assistant $150,000 in general damages against Group 4, and $150,000 in exem-plary damages against News, but has called for submissions on the appropriate quantum of eco-nomic loss and expenses.

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