Fiona Brown, a solicitor with Maurice Blackburn's Family Law Department, last week lost an appeal to the Victorian Court of Appeal, claiming that she had been bullied, harassed and undermined by a female colleague when she returned to work following maternity leave.
The claim brought to light an exchange of emails and comments which showed that both women were under a great deal of pressure, both with work and family responsibilities.
At the initial trial, the Judge concluded that Ms Brown had not been bullied and that it was not reasonably foreseeable that she might suffer psychiatric injury as a result of the situation. He found that Ms Brown's complaints were not supported by the evidence and did not in fact amount to systematic harassment as alleged.
The firm had not, therefore, breached its duty of care to Ms Brown.
The decision reiterates that the threshold test for the imposition of a duty of care is the reasonable foreseeability of psychiatric harm. In this case, such harm was not a reasonably foreseeable consequence of the performance of her duties until she raised the issue late in 2003, by which time Ms Brown had made up her mind to leave.
It was only once the alarm was raised that it was important to identify the reasonable person's response to foreseeability of injury of the type which Ms Brown allegedly suffered. The facts in this case showed that the firm's managing partner had properly discharged his duties.
Employers should be vigilant to the possibility that seemingly trivial intra-office exchanges may escalate into something more serious, eventually triggering the duty of care to avoid the risk of harm. Good practice based upon sound procedures, early intervention and dispute resolution is probably the best prescription to avoid costly and time-consuming court battles.
Fiona Brown v Maurice Blackburn Cashman[2013] VSCA 122.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
Kott Gunning is a proud member of 