The Queensland Supreme Court, in the case of Keegan v Sussan Corporation (Aust) Pty Ltd  QSC 64, unambiguously named and shamed Sussan Corporation Australia (“Sussan”) for its negligence in failing to prevent the harassment and bullying of former employee, Gabrielle Keegan. Sussan was ordered to pay Ms Keegan an amount in excess of $235,000 in relation to bullying suffered over a remarkable 11 day period.
Upon her return from maternity leave, Ms Keegan was excluded from information and activity “which was integral to the performance of her job” and was further subjected to “pedantic” levels of control. When considered in isolation the individual acts of condescending behaviour may not have seemed significant however, when considered as a whole, the supervisor’s behaviour was “unreasonable and excessive”.
In considerable distress, Ms Keegan repeatedly notified Sussan’s Queensland Business Manager of the bullying. In what the Supreme Court described as a “woefully inadequate and naïve response”, the Business Manager told Ms Keegan to “work it out for herself”.Extraordinarily, Ms Keegan was urged to “go put some red lippy on” and “go home to [her] bub”.
Sussan did not comply with its own Bullying and Harassment Policy, nor did it make any effort to investigate Ms Keegan’s complaints.
Ms Keegan was subsequently diagnosed with chronic adjustment disorder with anxiety and depressive symptoms. In the words of Henry J, “Ms Keegan’s life as she knew it was shattered by her employer’s breach…She was unable to care for her child and was unable to function normally as a mother and a wife.”
Generally, an employer is obliged to take all reasonable steps to provide a safe system of work, and to take reasonable care to avoid the psychiatric injury of an employee (Koehler v Cerebos (Aust) Ld (2005) 222 CLR 44). The risk of an employee sustaining a psychiatric injury needs to be reasonably foreseeable (Tame v New South Wales (2002) 21 CR 317). Ms Keegan’s distressed phonecall to the Business Manager was enough to “put Sussan on notice” that if the problem was not addressed there would be a reasonably foreseeable risk of psychiatric injury.
Importantly, an employee does not have to show that a person of “normal fortitude” might have suffered the same injury. Instead, the analysis is focused on the particular employee. Although Ms Keegan possessed certain personality traits that made her vulnerable to psychiatric injury the Court unequivocally determined that the cumulative effect of the bullying caused the psychiatric injury. Further,the defendant’s suggestion of causal contribution was not a valid basis for reducing the amount of general damages.
The Supreme Court’s decision affirms the employer’s duty to take reasonable care for their employees regardless of their varying personality traits and vulnerabilities. It is a timely reminder that even seemingly trivial behaviour may result in a workers’ compensation claim.