April 14, 2014

Bullying by an inexperienced supervisor of an assistant manager, over just 11 days at “Sussan” in Cairns, has resulted in a psychiatric injury so extreme that the employee is unlikely to be able to return to full-time work.
Gabrielle Kegan returned from maternity leave in September 2010 after the birth of her first child to find that a new store manager had been appointed in her absence. Keegan who had been with women’s fashion retailer Sussan for six years, was subjected to unwarranted criticism – often aggressively – about “the previous state of the store”; “not signing up customers to the store’s VIP discount programme”; “poor handwriting”; “failing to remove security tags from clothing”; and “not mopping the floor properly”.

It also involved excluding Ms Keegan from the knowledge of and participation in matters of business management, ignoring her offers of assistance and warning her of the consequences of a drop in standards.

On the third day back, Geraldine responded to the Queensland business manager, Jayne Makarein, that she was enjoying being back at work and the new manager Diane Clarke was “good”. But at the end of day 4, she recontacted Makarein to reveal the bullying, which regrettably for Sussan, did not prompt a proper application of its bullying and harassment policy.

The situation deteriorated daily until day 11 when Gabrielle left.

She sued Sussan on the basis the employer had caused or permitted the supervisor’s conduct “by failing to provide and maintain a safe workplace”. The claim was defended by WorkCover. The Supreme Court had to determine when and whether the employer should have intervened in the incident and how such intervention may have resulted.

“The point on the fourth day when Keegan telephoned Makarein in tears complaining Clarke was bullying her was a pivot point in this case,” ruled His Honour Justice Henry. The employer might not necessarily “have predicted the return of a longstanding assistant manager to work under a new manager might test that manager’s ability”.

“But the telephone call on day 4 from a crying Ms Keegan complaining of bullying conduct by Ms Clarke changed the equation”. At that point, the risk of psychiatric injury had escalated beyond a mere “far fetched or fanciful possibility”. Contrary to its documented procedures, the complaint was not treated seriously or impartially, confidentiality was not observed and no investigation occurred.

On that analysis, the court readily accepted that there had been breach of duty and that Sussan was liable for the resulting injury. Forensic psychiatrist Georgiana Antoce, reported a PIRS rating of 26% while colleague Alfred Chung, for WorkCover, went higher to 28% but attributed only 10% of this to the incident, with the balance referenced to “personality traits”.

The court was not prepared to diminish the extent of compensable impairment by reason of a pre-existing personality condition. Her personality “may have made her more vulnerable than the average person, but it was Sussan’s breach which caused the injury”.

That vulnerability did however have consequences in assessment of damages.

“The evidence does suggest Ms Keegan was likely more susceptible than the average person to suffering a psychiatric injury as a result of the ordinary exigencies of life”. Future economic loss damages were restricted to $55k – well short of the plaintiff’s formulation of her future loss – even though she was unlikely to return to full time work ever again.

Based on an ISV of 37%, general damages were awarded at $71,610, and past loss of wages at $120k, all part of a total assessment of $304k.

Keegan v Sussan Corporation (Aust.) Pty Ltd [2014] QSC 064 Henry J 07/04/2014

Categories: Personal Injury , Litigation & Law Practice

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