Breaking wind is not bullying rules Supreme Court judge

By Portner Press on April 9th, 2019
  1. Bullying, Harassment & Discrimination
  2. Bullying in the Workplace

A Melbourne engineer who sued his former employer $1.8 million for a supervisor’s serial flatulence has lost his appeal case in the Victorian Supreme Court.

In the original case last year, the former worker at Construction Engineering claimed that three of the workers in the company had a “conspiracy” between them to marginalise him and terminate his employment, resulting in him suffering from a number of psychiatric and physical injuries, including fibromyalgia and irritable bowel syndrome.

He alleged that his supervisor would regularly “lift his bum and fart” on him or at him, progressing to a point where he would do it every day.

At one point the worker pushed back at the supervisor by spraying him with deodorant and calling him “Mr Stinky”.

The worker also alleged that in the five to six weeks up to his redundancy, his supervisor abused him five times over the telephone, shouting at him telling him that he had “f—ed up”, he was “not worth [his salary]”, he was not worth s—” and that he “kept f—ing up”.

The supervisor denied yelling, screaming or swearing at the worker and denied deliberately or repeatedly passing wind close to him in order to cause him distress or discomfort.

However, a co-worker who gave evidence at the trial said “I do recall obviously times when [the worker] got quite offended by some of the stuff that went on”.

“Obviously there were incidences where [the supervisor] had a propensity to walk over to the printer, which was next to me and I think [the worker] sat behind where the printer was and [the supervisor] would flatulate [sic], he would fart you know and that would happen quite frequently,” he said.

“Now I – I mean I would laugh it off or you know walk out or whatever. But I knew that [the worker] took quite offence to it and I – to be honest at the time I didn’t understand, but then obviously realising it was [the worker] being [of] German descent, whereas us Australians are sort of brought up you sort of accept it or think oh it’s just – that’s what happens. But [the worker] was always quite often offended when that happened.”

Judge said “cultural difference” caused the worker to be offended

Justice Rita Zammit said “What is striking in this passage is the emphasis [the co-worker] placed on [the worker’s] offence at [the supervisor’s] flatulence — an offence that has its origins in cultural difference — rather than the sort of fear, distress, humiliation or victimisation that one would ordinarily expect in a bullying scenario”.

“Even if [the supervisor] did do what [the worker] alleged, it would not necessarily amount to bullying.

“It is difficult to see how [the supervisor’s] conduct could have intimidated or caused distress to [the worker].

“[He] was able to spray [the supervisor] with deodorant and give him the nickname ‘Mr Stinky’,” she said.

Domestic issues and redundancy caused the worker’s problems

While the supervisor acknowledged that he was frustrated with the worker’s performance, Justice Zammit found that the worker had no evidence to support the claim he had been bullied by the supervisor on the telephone.

She noted that a number of other employees at the company were also made redundant at the same time and said “It is likely that the real cause of [the worker’s] mental state today was a combination of domestic stressors and, most significantly, the stress of losing his job”.

“[A]ssuming [the supervisor] did not abuse [the worker] over the telephone, the combined effect of [the worker’s] temperament, domestic stress and the loss of his job would, on the balance of probabilities, have led to anxiety and a depressive condition

“It is in a sense tragic that [the worker’s] redundancy appears to lie at the heart of his problems. It seems, regrettably, to have generated a misplaced sense of unfairness at the loss of his job,” she said.

Next stop is the High Court

In the appeal hearing, Victorian Court of Appeal Justices Phillip Priest and David Beach found that Justice Zammit had “determined that [the worker’s] evidence was coloured by [his] lack of objectivity” and that she relied on his “unreasonable and relentless attempts to prove a conspiracy against him”.

“The judge’s patience and forbearance are evident,” they said.

The worker, who has not worked since he was retrenched from this position in 2009, was refused leave to appeal and ordered to pay the employer’s defence costs.

After the ruling was delivered, he told the judges “I’m taking it to the High Court”.

Learn more in the Health & Safety Handbook

It is best to resolve workplace issues before they reach court.

In the following Handbook chapters we show you how to address subjects raised in this article:

B1 Bullying

M3 Mental Health

P1 Performance Management

S4 Stress

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