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Pendlebury Workplace Law is a specialist workplace relations and employment law legal practice based in Sydney.

Duty of care, bullying and harassment, and unfair dismissal: Court decision

It was held that Curtin University did not breach a lecturer’s employment contract or its duty of care by failing to make progress with complaints he lodged against his superiors under the University’s grievance policy.

The lecturer activated Curtin University of Technology’s Grievance Policy in May 2002 when he made a formal complaint that he was being marginalised and humiliated by his department and school heads.

GrievancesIn line with the policy, the University’s Grievance Resolution Officer (GRO) forwarded the complaint to the lecturer’s Executive Dean, who said he would take it up with the alleged perpetrators.

But the Dean did not raise the matter with them, and little progress was made with the grievance by September 2002 when a number of students lodged complaints about the lecturer’s teaching methods.

The University stood the lecturer down while it investigated the students’ complaints, and in November he went on extended sick leave for a stress-related condition.

The University ultimately rejected most of the students’ complaints.  From the start of 2003, the lecturer took a mixture of long service leave, annual leave and sick leave, and never effectively returned to work.

He was certified totally unfit for work in February 2003, and his condition did not improve.

Progress on the lecturer’s grievance stalled in 2003, with the University initially concerned that it could not proceed while he was on sick leave, followed by disagreement over who would conduct the investigation and the need for him to provide a coherent summary of his concerns, which had expanded since the initial complaint.

In September 2004 the University sacked the lecturer after it found pornographic material and illegally downloaded music on his work laptop.

The lecturer filed an unfair dismissal as a result of his sacking.

The Australian Industrial Relations Commission (AIRC) rejected his unfair dismissal claim in a decision handed down in March 2006.

A full bench refused the lecturer leave to appeal the AIRC decision, later that year.

Following a deterioration in his psychiatric condition, the lecturer sued the University in the WA Supreme Court in February 2009, claiming that it had breached its duty of care to him by failing to deal with the alleged bullying and harassment, and not resolving his formal grievance.

He also argued that the grievance process breached his contract of employment.

images-2Drawing on the definition of ‘bullying’ adopted by the Federal Court in last year’s Farstad case, his Honour Justice McKechnie said that assessing “unreasonable behaviour” required an objective test, not a subjective one, “this must plainly be right as it accords with the general law of negligence“.

Justice McKechnie held that none of the University’s employees bullied, harassed or victimised the lecturer, finding their “predominant motive” was his welfare, given they knew he was stressed and fragile.

Policy contractually binding, but no breach

Following the Farstad ruling, Justice McKechnie found that the University’s Grievance Policy imposed “mutually binding obligations” on the lecturer and the University.

But he said any inaction by the University before February 2003 was statute-barred by section 38 of the Western Australian Limitation Act.

The judge said the Executive Dean had breached “the protocol” in not raising the grievance with the department and school heads. And he said that while “in retrospect” the decision to suspend the process pending the lecturer’s return to work might have been wrong, “not every wrong decision is a negligent decision”.

Justice McKechnie said the University’s failure to deal with the grievance while he was on leave was not a breach of its duty of care nor a breach of any implied condition of employment.  He said, “The correspondence and emails flowing between the [lecturer] and Curtin tell a story of a [lecturer] who kept expanding his grievances and adding persons each time he disagreed with them… The Curtin responses and communications between staff show an organisation concerned about the plaintiff’s fragile state and wanting to resolve outstanding issues if possible.”

His Honour said the lecturer “blew hot and cold” about the grievance process, at times being unwilling to proceed and at other times wanting it expedited.  He said, “The actions taken by Curtin over the relevant period were reasonable responses. For most of the period, the [lecturer] was certified as unfit for work and Curtin reasonably exercised its duty of care by not permitting [him] to work during the periods he was so certified.

Justice McKechnie said the inquiries the University made of him from time to time did not breach its duty of care “nor did they demonstrate bullying“.

His Honour found that the lecturer’s suspension following the student complaints caused his adjustment disorder, rather than the University’s failure to resolve his bullying grievance.

[Please refer to Christos v Curtin University of Technology [No 2] [2015] WASC 72 (27 February 2015)]

Brooke Pendlebury
Wednesday, May 6, 2015
Dismissal, Harassment at Work, News