Kicking up a stink! Employee loses bullying claim regarding manager’s flatulence
Posted on June 14, 2018
In a ripper of a case[i], the Victorian Supreme Court rejected a worker’s $1.8 million claim against his supervisor, whom he dubbed “Mr Stinky”.
David Hingst, was employed by Construction Engineering (Aust) Pty Ltd (CE), as a contract administrator from 13 May 2008 to 8 April 2009. Mr Hingst claimed that he was bullied in the workplace during this period. His case centred on an alleged “conspiracy” between three of his fellow employees (including, Mr Short, his supervisor) to marginalise him and terminate his employment.
Mr Hingst alleged that in the five to six weeks before his redundancy, Mr Short repeatedly abused him over the telephone, saying he had “f***ed up”, that he was “not worth [his salary]”, that he was “not worth s**t”, and that he “kept f***ing up”.
Mr Hingst also traversed a number of incidents that occurred prior to March 2009, which caused him concern, including what the Court termed “the flatulence incident(s)”.
Mr Hingst alleged that Mr Short would regularly “lift his bum and fart” on him, or at him, and that Mr Short thought this was funny. According to Mr Hingst, this happened on his first day back at head office, progressing to the point where Mr Short would do it every day. Mr Hingst complained that he found Mr Short’s behaviour insulting and demeaning.
On one occasion, Mr Hingst said he went down the street and purchased a can of deodorant and came back and sprayed it over Mr Short. On another occasion, Mr Hingst refused to get into a lift with Mr Short and, when asked why, called him “Mr Stinky”.
Mr Short denied regularly passing wind in the communal office or around Mr Hingst. Although Mr Short admitted that, once or twice, he had accidentally passed wind and was embarrassed about it. He also said that, on one occasion, Mr Hingst sprayed him with deodorant. He conceded that, after Mr Hingst branded him “Mr Stinky”, he may have thrust his backside towards Mr Hingst and pretended to pass wind.
The Court did not accept Mr Hingst’s evidence about the frequency of Mr Short’s flatulence in the office or that it was targeted at Mr Hingst. The Court stated that even if Mr Short did engage in the alleged conduct, it would not necessarily amount to bullying. In this respect, the Court noted that Mr Hingst and Mr Short were only in the communal area together for a brief period of time and it was difficult to see how Mr Short’s conduct could have intimidated or caused distress to Mr Hingst.
The Court also rejected Mr Hingst’s claim that he was subjected to bullying behaviour by Mr Short over the telephone due to insufficient evidence.
Under the work health and safety legislation, employers have a primary duty to ensure, so far as is reasonably practicable, the health and safety of all its employees while they are at work. In addition to this statutory obligation, employers have both contractual and tortious obligations which require employers to provide a workplace that is free from bullying.
While bullying is a serious issue for both employees and employers, there is a recent trend for the term to be used fairly loosely. The Fair Work Act 2009 (Cth) provides that bullying is “repeated, unreasonable behaviour directed toward an employee, or group of employees, that creates a risk to health and safety”.
This case acts as an important reminder to revisit any existing workplace bullying policies, or, if no such policy exists, to draft and implement one. At a minimum, an employer’s bullying policy should include:
- a definition of workplace bullying;
- the standard of behaviour expected from workers and others in the workplace;
- the process for reporting and responding to incidents of unreasonable behaviour;
- the process for managing reports of workplace bullying, including vexatious reports; and
- the consequences of not complying with the policy.
Please contact a member of Lynch Meyer’s Workplace Relations team if you require assistance drafting or reviewing your workplace policies or advice regarding the management of bullying complaints.
[i] Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136 (29 March 2018).
