In brief – Employee not bullied and employer did not breach duty of care
An employee who experienced an overwhelming workload, professional and personal pressure, conflict and a strained relationship with a colleague was found not to have been bullied.
Bullying alleged following return to work from maternity leave
In May 2012, after a 15 day hearing, the Victorian County Court in Brown v Maurice Blackburn Cashman  VCC 647, dismissed a claim by a salaried partner of Maurice Blackburn who alleged that she had been subjected to bullying behaviour by a co-worker subsequent to her return to work from maternity leave.
Ms Brown had been the head of the family law department at Maurice Blackburn. Three solicitors reported to her, including a solicitor she had known socially and had recruited approximately two years prior, Ms Formica. When she went on maternity leave, Ms Brown's files were allocated to the three solicitors and shortly before Ms Brown returned to work, Ms Formica became a salaried partner.
Ms Brown alleged that, upon her return to work, Ms Formica engaged in bullying by way of email correspondence and in direct conversations. She asserted that Ms Formica was critical of her file management and billing practices. On one occasion Ms Brown alleged that she sought assistance from Ms Formica to prepare for a court appearance and Ms Formica stated that she was too busy.
Employee’s complaint leads to unsuccessful mediation
Ms Brown complained to the firm's managing partner, who conducted a mediation with Ms Brown and Ms Formica. It was unsuccessful, the relationship between Ms Brown and Ms Formica remained strained and Ms Brown ultimately left the firm.
Ms Brown commenced proceedings against Maurice Blackburn, asserting that she had sustained a psychiatric injury as a result of the bullying which has prevented her from being able to work as a solicitor.
Did the employer breach its duty of care to the employee?
At issue in the proceedings was whether Maurice Blackburn owed a duty of care to Ms Brown, whether it was reasonably foreseeable that she would suffer psychiatric injury in the circumstances and whether Maurice Blackburn breached its duty of care, causing a psychiatric injury.
Court rejects employee’s bullying claim
The Victorian County Court rejected Ms Brown's contention that the email exchanges amounted to bullying behaviour, finding that both women were under significant personal and professional pressure.
After an examination of the emails exchanged, the Court dismissed Ms Brown's claim, finding that she had not been bullied, that it was not reasonably foreseeable that she might suffer psychiatric injury as a result of stress upon her return to work and that Maurice Blackburn did not breach its duty of care.
Employer found to have responded appropriately to complaint
Maurice Blackburn was found to have acted as a reasonably prudent employer in the circumstances. It was found that the managing partner had adequate training and experience to deal with the bullying complaint and that he responded to it appropriately by attempting to resolve the issues through mediation.
Employee unsuccessfully appeals court decision
Ms Brown appealed the decision.
On 22 May 2013 in Brown v Maurice Blackburn Cashman  VSCA 122, the Victorian Court of Appeal affirmed the decision of the Victorian County Court. It found that Ms Brown had not established that she had been subjected to bullying and agreed with the court at first instance that some level of stress and conflict was inevitable in the circumstances and that at best Ms Formica engaged in a robust expression of frustration concerning her workload.
It was also found that a duty of care did not arise until Ms Brown lodged a complaint and that the managing partner's response to the complaint was reasonable in the circumstances.
Employers should carefully manage workload shifts associated with maternity leave
Despite the finding that Ms Brown was not bullied upon her return to work, this decision highlights the need for employers to ensure that protocols are implemented to manage workflow when a staff member goes on maternity leave and to ensure that appropriate resources are allocated to assist a returning staff member to transition back into the workplace after an absence from work.
This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2020.