Workplace Bullying Litigation: A New Manual

The $37 million action against David Jones Ltd and its former CEO Mark McInnes by Kristy Fraser-Kirk has sent shock waves throughout the corporate world. This area of law is fast becoming a lucrative little earner for the legal fraternity. Harmers Workplace Lawyers got the type of front-page publicity that money can’t buy. Workplace Bullying Litigation Lawyers’ Manual will arm you with the knowledge to push yourself and your firm as a leader in this area of law, which will result in free publicity to promote your firm.

Workplace Bullying Litigation Lawyers’ Manual gives lawyers the bullets to fire for any workplace matter involving bullying, harassment, discrimination, breach of contract, tort and equity. It’s packed with cases, medical knowledge, legal scenarios and the most prominent research from the social sciences all geared to prove the workplace caused the injuries.

Extract:

Stress and depression due to workplace bullying/harassment and discrimination have caused your client a biological injury. Under no circumstances allow the lawyers for the defence to insist that your client’s depression is ‘merely psychological’.

To further enrage the lawyers for the defence when they try to claim that your client’s depression is all in his/her mind, quote O’Keene’s Evolving model of depression as an expression of multiple interacting factors. Have your client’s psychiatrist validate O’Keene as applying to your client.

O’Keene identified different stressors which activate selective stress responses in the body but the most commonly activated of these systems is the hypothatamic-pituitary-adrelan (HPA) axis.

Although little is known of the mechanism of the activation of the HPA axis following psychological stress, O’Keene believes it involves the stress neurotransmitters 5-hydroxytryptamine (5-HT) or noradrenaline (NA).

Stimulation of either of these neurotransmitter systems results in CHR (corticotropin-releasing hormone) release from the hypothalamus and subsequent release of adrenocorticotrophic hormone (ACTH) from the anterior pituitary gland.

This means that stress and depression have caused your client a biological injury.

This is one of the steps in out-foxing Tame v NSW  and lawyers for the defence.

___________

When your client starts a new job, no doubt he/she will be handed a Code of Conduct.
(the “Code”)  For initiating a claim in the Federal Court, include the following:

Referring to (the Code that your client would have received) in the Statement of Claim.

(number) The Code purported to describe the values and behaviours that  (Respondent) and its Board and Management were committed to and made  representations that:

(a) the standards set were high;

(b) (Respondent) was committed to demonstrating the spirit, intent and  actions contained in the Code;

(c) employees of (Respondent) would not do anything that could negatively affect  (name of company) reputation and brand;

(d)  employees of (Respondent) would not participate in any illegal or unethical  activity;

(e)  employees of (Respondent) would actively promote compliance with laws,  rules, regulations and the Code;

(f)  (Respondent) was committed to providing a safe and healthy workplace;

(g)  (Respondent) did not tolerate harassment, discrimination or bullying in the  workplace;

(h)  an employee could expect to be treated in a fair and professional manner;

(i)  harassment, defined as subjecting people to unwelcome or uninvited attention  that intimidates, humiliates or offends them, was unacceptable;

(j) misuse of company equipment including the telephone to send  inappropriate messages would not be tolerated;

(k)  harassment and discrimination would not be ignored;

(l)  (Respondent) was committed to preventing injury and illness of its staff by providing a safe and healthy working environment;

(m)  (Respondent) would act, by way of conciliation, investigation or otherwise to resolve an issue of harassment.

(number) In making the Initial Representations, (Respondent) engaged in trade or commerce within the meaning of:

(a)  section 4 of the TPA

(b)  section 4 of the FTA

Breaches of Statutory Norms

(number)  By making Initial Representations of the Employment Conditions Representations, (Respondent) engaged in conduct that was misleading   or deceptive or likely to mislead or deceive in contravention of section   52 of the TPA and/or section 42 of the FTA in that:

(a) (state the misleading or deception representation that was made at your client’s job interview)

Particulars

               (a)  list the incidents that happened to your client

               (b)  contrary to the Respondent Employment Condition Representations

(i) the standards set were not high;

(ii) (Respondent) was not committed to demonstrating the spirit, intent and actions contained in the Code

(iii) employees of (Respondent) did do things that could negatively affect  (name of company) reputation and brand;

(iv)  employees of (Respondent) did participate in illegal or unethical activity;

(v)  employees of (Respondent) did not actively promote compliance with laws,  rules, regulations and the Code;

(vi)  (Respondent) was not committed to providing a safe and healthy workplace;

(vii)  (Respondent) did  tolerate harassment, discrimination or bullying in the  workplace;

(viii)  an employee could not expect to be treated in a fair and professional manner;

(ix)  harassment, defined as subjecting people to unwelcome or uninvited attention  that intimidates, humiliates or offends them, was acceptable; and

(x) misuse of company equipment including the telephone to send  inappropriate messages was tolerated;

 Particulars

              (c) contrary to the Employment Condition Representations:

(write the particulars)

(number) In so far as the Initial Representations, the Respondent did not have   reasonable grounds, within the meaning of section 51A of the TPA   and/or section 41 of the FTA for making those representations.

(number) Further and in the alternative, (Respondent) engaged in conduct that   was misleading or deceptive or likely to mislead or deceive in    contravention of section 42 and/or 46 of the FTA in that contrary to the   Respondent Employment Condition Representations:

  (a) the ethical standards of (Respondent) were not set high;

  (b) (Respondent) was not committed to demonstrating the spirit, intent   and actions contained in the Code;

  (c) employees of (Respondent) did participate in unlawful and    unethical activity;

  (d) employees of (Respondent) did not actively promote compliance   with laws, rules, regulations and the Code;

  (e) (Respondent) was not committed to providing a safe and healthy   workplace;

  (f) (Respondent) did tolerate harassment, discrimination or bullying in   the workplace;

  (g) an employee could not expect to be treated in a fair and     professional manner;

  (h) harassment, defined as subjecting people to unwelcome or    uninvited attention that intimidates humiliates or offends them, was   acceptable; and

  (i) misuse of company equipment including the telephone to send    inappropriate messages was tolerated

Loss and Damage by the Contravention

  (number) By the contraventions of the TPA and FTA pleaded above   (your client) has suffered loss and damage)

Particulars

(list)

Representation can be made by Silence or it can be an Isolated Event Representation.
This is conduct by the Respondent within the meaning of section 4 of the FTA

Breach of Statutory Norms
By making Isolated Event Representations, the Respondent  engaged in conduct that was misleading or deceptive or likely to mislead or deceive in contravention of section 52 of the TPA and/or section 42 of the FTA in that

(list events such as)

(a)  the incident involving (your client) was not a single event;

(b)  (Respondent) did previously have reason to question the conduct of (bully);

(c) (Respondent) did have reason to see the potential or possibility of (bully)  behaving as he/she had done;

(d)  this was not the only complaint that senior management knew about;

(e)  there was a culture of bullying/harassment/sexual harassment at (place of  employment)

(number) (names of cohorts of bully/ies) – and there are always cohorts

(a) aided and abetted; or
(b) were directly and knowingly concerned in; or
(c) a party to

the contravention of section 52 of the TPA by (Respondent) and were thus persons involved in the contravention within the meaning of section 75B of the TPA.

(number) By the contraventions of the TPA and /or FTA pleaded above (your client) has suffered lass and damage.

Particulars

(list)

CLAIM IN CONTRACT
(number) The terms on which (your client) was employed by (Respondent) was partly  express and partly implied.

Particulars

(list)

By the conduct pleaded in paragraphs —to ——above, (Respondent) breached the terms and conditions of (your client) contract of employment, including the terms set out at Schedule One (include the terms in your client’s Contract of Employment in Schedule)

The following terms are usually found in most employment contracts:

(a) the Code of Conduct Compliance Terms

(b) the Code Healthy and Safety Term;

(c) The Safe Work Term;

(d) the Code Anti-Harassment Term;

(e) the Code Anti-Bullying Term;

(f) the Code Fair Treatment Term;

(g) the Good Faith Term;

(h) the Trust and Confidence Term;

(i) the Cooperation Term;

(j) The Code Corporate Behaviour Terms

By reason of (Respondent) breach of contract (your client) has suffered loss and damage.

Particulars

(list)

CLAIMS IN TORT

Breach of duty of care to provide a safe system of work

(number) By reason of its employment of (your client), (Respondent) owed a duty of   care to (your client) to take reasonable care to avoid exposing her to   unnecessary risks of injury to his/her person or reputation.

(number) By acting as in paragraphs — to —(Respondent) breached its duty of care   to (your client) causing him/her loss and damage.

Trespass

(a) date and list what happened physically to your client.

(number) By reason of the conduct of (bully), (your client) suffered loss or damage.

Particulars

(list)

CLAIMS IN EQUITY
(number) By reason of the Initial Representations, Employment Condition Representations:

(a) (your client) assumed that his/her relationship with (Respondent) would reflect the Initial Representations, Employment Condition Representations;

(b) (Respondent) induced the Applicant to adopt that assumption;

(c) (your client) continued employment with (Respondent) in reliance on that assumption;

(d) (Respondent) intended (your client) to so act;

(e) The failure of (Respondent) to fulfil Initial Representations, Employment Condition Representations has caused detriment to the Applicant.

The Respondent failed to avoid that detriment by fulfilling the assumption of otherwise.

LOSS AND DAMAGE

(number) (your client) has suffered or will suffer the following loss or damage:

(a) Offence, humiliation, distress and anxiety;

(b) Loss of opportunity for promotions and advancement in his/her chosen career;

(c) Damage to personal and professional reputation;

(d) Medical Expenses;

(e) Legal expenses

In the Workplace Bullying Litigation Lawyers’ Manual, there is extensive medical injury research that details the injuries that are caused by workplace bullying. Be sure to list that in your particulars. And as I have said in the Manual, avoid the over use of the words “depression” and anxiety”.  Instead, give the detailed medical terminology from the manual so that those words are not trivialized.

Next month I will write another blog on how to deal with punitive damages – the how, why and effect of claiming punitive damages.

By Kathryn-Magnolia Feeley

To view Kathryn’s new publication, Workplace Bullying Litigation Lawyers’ Manual, click here.