Sizeable Payout for Bullying, Harassment

Kate Mathews v Winslow Constructors (Vic) Pty Ltd [2015] VSC 728 (17 December 2015)

A female construction worker has been awarded $1.3 million in damages after the Victorian Supreme Court heard evidence of gross behaviour by work colleagues including physical and verbal assault, harassment on a virtually daily basis and a complete failure of management to do anything about her complaints.

The personal injury case was brought against a construction company which has also been the subject of close attention from the Royal Commission into Trade Union Governance and Corruption, making it a grim year for that business.

The worker initially assumed the novelty of her being there would wear off and the behaviour of the male construction workers around her would cease. On the contrary, it escalated, and her immediate supervisor was of no use as he was a perpetrator of some of the abuse. Her complaints to the area manager met with soothing noises, but no real action.

Ultimately the worker had a break-down and has not worked since her resignation in 2010. The last straw for her was when one colleague said to her he was “going to follow you home, rip your clothes off and rape you”.

The company initially attempted to fight the case including presenting covertly shot film of the worker doing ordinary every day activities, seemingly contrary to her professed inability to cope with life after her traumatic employment. However five days into the case, the company folded, and admitted vicarious liability.

The behaviour of the management in this case was particularly negligent given the uncontested evidence that the employee was good at her job. So much so that the Court, in determining damages, estimated she would have been elevated to foreman within two years of the time she resigned, adding to her ultimate payout.

The company bore all the opprobrium and the costs in this case. The actual perpetrators of the behaviour appear to have got off scot-free. This is the lesson for all employers. If the employees who behave in this manner are not pulled up in their tracks – permanently, not just for a short time, then the company will pay, and pay dearly. Also, given the increased capacity for individual managers to be included in damages actions under the Fair Work Act, failure to act on complaints just isn’t an option.