In August 2017, Judge J Henry awarded Mary-Rose Robinson $1,468,991 in damages. Her former employer, the Queensland State Government, was found to have been negligent and breached their duty of care to her in not acting to prevent the injury that was caused by workplace bullying.
In this article I will explore the key reasons that lead to the massive payout. However, there are two key factors that lead to the outcome. These are the concepts of awareness and action. Had her employer acted appropriately on the information they were aware of, the outcome might have been very different.
A Little About Mary-Rose
Mary-Rose commenced employment as a District Director of Nursing (DON) for the Cape York Health Service in January 2008. From accounts presented at the hearing, she was an accomplished professional who had worked her way into the DON position. At the time of employment at the hospital in 2008, she was 50 years of age and had intended to work to at least 67. In January 2011, she ceased working and lodged a successful Workcover claim. The injury she sustained left her incapable of returning to her career.
A Risk is Identified and Action Occurs
The irony in Mary-Rose’s case was that it all started with positive steps to resolve workplace behavioural concerns. In her first 12 months in the DON role, concerns were raised about the behaviour of Nursing Unit Manager (NUM), Barbara Holmes, towards other employees.
The CEO, Paul Stephenson, arranged for an external investigation and organisational review, which identified that Barbara’s behaviour included “emotional outbursts in front of staff, expressions of distress, disengagement in team meetings and frequent periods of emotional lability”. It was recommended that Barbara be placed on leave and immediately referred for a psychiatric medical assessment to ascertain her fitness to complete the role; and that formal performance management and disciplinary processes be instigated regarding possible breaches of the code of conduct.
Barbara was provided an opportunity to respond to the investigation. In her response, Barbara stated that a number of the issues were caused by Mary-Rose. However, at the time, the decision was made to reassign Barbara to the Patient Safety and Quality Work Unit.
Awareness, but Inaction
It is the following action, or lack there of, that Judge Henry found extraordinary. There was no further action to mitigate the behavioural risk of Barbara Holmes.
In October 2009, Paul Stephenson resigned and 3 months later a new CEO, Susan Turner, commenced in the role. Mary-Rose provided her with a briefing of the situation and copies of the investigation and review report. Susan failed to follow up on any of the recommended actions.
In March 2010, Barbara lodged eight Workplace Incident Forms (WIF) alleging bullying and harassment by Mary-Rose towards her. When Mary-Rose learned of the existence of the WIFs in May, Susan advised her not to worry describing the WIFs as vindictive and vexatious. She told Mary-Rose she will forward them onto her so she can respond appropriately, but doesn’t until July 2010.
Judge Henry notes that, given the feedback from the investigation and review, it is perplexing that the CEO didn’t formally deem the WIFs as vexatious (which was within her power) and commence disciplinary proceeding against Barbara as the organisational policy would allow. This would have ended the matter. Instead, Mary-Rose was asked to provide a written response to the WIFs within 14 days. Even with Mary-Rose’s response, the matter in relation to the WIFs was never finalised.
In this case, there was awareness that Barbara Holmes’ behaviour was a potential workplace risk and there was a proposed course of action. However, there was no action to effectively manage or mitigate that risk.
Awareness of Mary-Rose’s Escalating Injury
From the time of arrival in her position, Susan is made aware of the risk of injury to Mary-Rose. During her induction handover, Mary-Rose advised Susan she felt vulnerable because Barbara’s response to the investigation and review. She had read Barbara’s response and stated that it had felt like a personal attack. However, at this stage, Judge Henry notes that there is no serious indication of psychiatric injury.
As mentioned, in March 2010, Barbara lodged 8 WIFs alleging bullying by Mary-Rose, which Mary-Rose doesn’t find out about until May. It is then eight weeks later that Mary-Rose is provided copies of the WIFs. While waiting, Mary-Rose requests copies of them numerous times advising Susan she was getting more and more worried, also requesting an independent investigation so the matter can be resolved.
On receiving the WIFs, Mary-Rose became more distressed because they were more malicious than she expected. In describing her situation, Mary-Rose stated she was both “professionally and personally at risk”. She was unable to attend a work visit in the following days because she was crying and distressed. In July 2010, Mary-Rose lodged her own WIF citing her increasing depression and anxiety and declining physical health.
There are other indicators of the impact on Mary-Rose’s health of which Susan is aware. In July, Mary-Rose advises Susan she has to step out of a workshop because she was becoming anxious and tearful. Later that month, she advises that she has been diagnosed with high blood pressure without a previous history of it. She tells Susan she is still feeling fragile and threatened by her professional integrity being “dragged through the mud” again asking Susan to investigate. Then Mary-Rose takes leave for eight weeks across August and September because Susan recognised her anxiety and duress.
There is a strong awareness of the implications for Mary-Rose’s health and safety. In fact, Judge Henry highlighted that the failure of the the employer to provide copies of the WIFs to Mary-Rose in a timely manner contributed to significantly to her decline in health and the organisation had breached their duty of care as a result.
Unfortunately, what followed was a complete disregard for Mary-Rose’s health and safety by the CEO. Judge Henry described the behaviours then utilised by Susan as “managerial mistreatment”. He stated that behaviour was “akin to a consideration of repeated behaviours of a kind sometimes referred to as workplace harassment or bullying”.
While not going into detail here, Susan’s behaviours towards Mary-Rose included unjustified blaming, belittling, public humiliation, isolation, exclusion and undermining in ten separately documented instances. This occurred between June 2010 and January 2011.
Topping it all off, without any consideration or consultation with Mary-Rose, Susan announced that Helen would be returning to the NUM role in February 2011.
On learning of the decision, Mary-Rose was unable to return to her role. She was diagnosed with a psychiatric injury of an adjustment disorder with a chronic anxiety and depressed mood by psychologists. Ultimately, she was diagnosed as never being able to work again.
The psychologists linked the cause to Susan Turner’s management actions, or lack there of, which Judge Henry agreed and awarded damages accordingly.
An Important Note About Workplace Bullying
In this case, Judge Henry commented that in this era, the potential psychological injury risk of workplace bullying and harassment is well known and foreseeable. It is a warning that ignorance of workplace bullying risk is not an excuse for inaction.
Key Lessons from Mary-Rose’s Story
What can you learn to prevent this outcome occurring to your business?
- Once you are aware of a risk, you must act to ensure you have mitigated that risk. This includes workplace behavioural risks. Not doing so leaves you open to breaching your duty of care and claims of negligence.
- Address employee concerns in a timely manner. Even if not a formal complaint, your awareness of a concern requires you to act because if it does escalate, you could be liable if you do nothing. The longer a concern is left unaddressed, the greater the risk of psychological injury.
- Ensure employees at all levels are trained in workplace bullying to prevent its occurrence. Employees need to know what it is, but also what to do when it occurs. In that training, incorporate reflection on their personal behaviours to encourage self awareness.
- Where the person using the bullying behaviour is the CEO or management, employees need to know what they can do to stop the behaviour. Boards, committees of management and directors all have a role to play when the behaviours are present in the higher ranks of a business.
- Provide support to those employees targeted with bullying type behaviours. Act early, assess whether there are signs of injury and implement an appropriate workplace support plan to prevent or minimise injury.
Are you curious to learn more about preventing and stopping workplace bullying?
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