Does an employer’s lawful direction and disciple constitute bullying?

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By Stuart Eustice, Partner, Holly White, Associate and Emily McDougall, Law Graduate

Vincent v Victorian WorkCover Authority [2023] VCC 1667

Factual Background

The plaintiff, Claire Vincent, worked as a dental nurse for a sole practitioner dental practice in Mornington, Victoria, operated by Elbarki Nominees Pty Ltd. At all material times, the practice was supervised, managed and controlled by Dr Heba Elbarki, dentist.

The plaintiff brought proceedings against the defendant seeking to recover damages for injuries she alleges to have sustained in the course of her employment with the employer “as a result of repetitive and sustained conduct perpetuated by Dr Elbarki towards her, which in the circumstances amount to and/or was ‘bullying’”. The plaintiff identified 15 incidents that she alleged, when taken as a whole, established that Dr Elbarki had bullied her. Her claim in negligence was that as a result of being exposed to that bullying, the plaintiff suffered a permanent mental injury and as a consequence continues to suffer loss of enjoyment of life.

Legal Issue

The issue considered by the Court was whether there was any negligence on the part of Dr Elbarki that was a cause of the plaintiff’s psychiatric injury, loss and damage and whether lawful directions, supervision, training and discipline constitute bullying.

Decision

The Court held that Dr Elbarki’s conduct did not amount to negligence. The Court stated that none of the 15 incidents on their own established negligence and that overall, they do not “paint they paint a picture of an employer falling short of the standard of care expected of a reasonable employer in the position of Dr Elbarki”. The incidents did not demonstrate that Dr Elbarki abused any rights as an employer for an improper or collateral purpose.

The Court stated in its reasons that:

  1. Dr Elbarki was dealing with an employee who was combative and unwilling to abide by directions. The plaintiff would not accept responsibility for her actions, and instead seemed to adopt the stance that attack is the best form of defence. Dr Elbarki did not give directions to the plaintiff that were unreasonable or unjustified, and nor was it unreasonable to take measures to enforce lawful directions when the plaintiff had demonstrated her intention to disregard them.
  2. Dr Elbarki had the lawful right to supervise and train the plaintiff. They were working in a medical service where patient care and safety is paramount.
  3. If the plaintiff breached safety standards or exposed her fellow employees to risk of injury, such as by assault, Dr Elbarki was entitled as a matter of law to treat these as disciplinary matters. Dr Elbarki engaged in justified disciplinary processes when she issued warning letters to the plaintiff, when she investigated the plaintiff’s alleged misconduct, and when she suspended the plaintiff pending her investigation into the alleged assault on another employee.
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