Судья в первой инстанции
сказала, что это ничего страшного. Что такое поведение начальника не образует
состав «bullying». Надо было просто воспользоваться
освежителем воздуха, прозвать начальника «Mr Stinky» и работать
дальше.
В суде также выступил сослуживец. Он сказал, что для австралийцев
такое поведение является обычной шуткой. Но указал на то, что истец не австралиец,
а немец.
Конечно, нужно читать судебное постановление, но, вроде, сам
начальник судом не опрашивался.
Суд апелляционной инстанции согласился с выводами суда первой
инстанции. Истец, сказал, что будет
подавать жалобу в Верховный Суд.
Вообще истец говорит о том, что не только его начальник, но и
некоторые другие сотрудники фирмы вступили в сговор с целью, чтобы он уволился.
Говорит о том, что поведение этих сотрудников стало причиной возникновения у
него таких заболеваний, как «fibromyalgia»
и «irritable bowel syndrome». Говоря коротко, первая болезнь это – боли в суставах,
вызванные эмоциональным состоянием, вторая – боли в животе, также от того же
самого.
То есть, таких ситуаций хватает и у нас – заговор с целью
увольнения работника. Никогда не видел решение нашего суда в данной связи.
Поэтому указанное дело должно быть в принципе интересным.
- Worker sues employer for boss’s farting
- Your questions answered: What is a lost time injury and how long does it last?
| |
|---|
|
|---|
|
|
Editorial Team
Tuesday 9 April, 2019
|
|---|
|
|---|
|
Worker sues employer for boss’s farting
A Melbourne engineer who sued his former employer $1.8 million for a supervisor’s serial flatulence has lost his appeal case in the Victorian Supreme Court.
In the original case last year, the former worker at Construction Engineering claimed that three of the workers in the company had a “conspiracy” between them to marginalise him and terminate his employment, resulting in him suffering from a number of psychiatric and physical injuries, including fibromyalgia and irritable bowel syndrome.
He alleged that his supervisor would regularly “lift his bum and fart” on him or at him, progressing to a point where he would do it every day.
At one point the worker pushed back at the supervisor by spraying him with deodorant and calling him “Mr Stinky”.
The worker also alleged that in the five to six weeks up to his redundancy, his supervisor abused him five times over the telephone, shouting at him telling him that he had “f---ed up”, he was “not worth [his salary]”, he was not worth s---” and that he “kept f---ing up”.
The supervisor denied yelling, screaming or swearing at the worker and denied deliberately or repeatedly passing wind close to him in order to cause him distress or discomfort.
However, a co-worker who gave evidence at the trial said “I do recall obviously times when [the worker] got quite offended by some of the stuff that went on”.
“Obviously there were incidences where [the supervisor] had a propensity to walk over to the printer, which was next to me and I think [the worker] sat behind where the printer was and [the supervisor] would flatulate [sic], he would fart you know and that would happen quite frequently,” he said.
“Now I – I mean I would laugh it off or you know walk out or whatever. But I knew that [the worker] took quite offence to it and I – to be honest at the time I didn’t understand, but then obviously realising it was [the worker] being [of] German descent, whereas us Australians are sort of brought up you sort of accept it or think oh it’s just – that’s what happens. But [the worker] was always quite often offended when that happened.”
Judge said “cultural difference” caused the worker to be offended
Justice Rita Zammit said “What is striking in this passage is the emphasis [the co-worker] placed on [the worker’s] offence at [the supervisor’s] flatulence — an offence that has its origins in cultural difference — rather than the sort of fear, distress, humiliation or victimisation that one would ordinarily expect in a bullying scenario”.
“Even if [the supervisor] did do what [the worker] alleged, it would not necessarily amount to bullying.
“It is difficult to see how [the supervisor’s] conduct could have intimidated or caused distress to [the worker].
“[He] was able to spray [the supervisor] with deodorant and give him the nickname ‘Mr Stinky’,” she said.
Domestic issues and redundancy caused the worker’s problems
While the supervisor acknowledged that he was frustrated with the worker’s performance, Justice Zammit found that the worker had no evidence to support the claim he had been bullied by the supervisor on the telephone.
She noted that a number of other employees at the company were also made redundant at the same time and said “It is likely that the real cause of [the worker’s] mental state today was a combination of domestic stressors and, most significantly, the stress of losing his job”.
“[A]ssuming [the supervisor] did not abuse [the worker] over the telephone, the combined effect of [the worker’s] temperament, domestic stress and the loss of his job would, on the balance of probabilities, have led to anxiety and a depressive condition
“It is in a sense tragic that [the worker’s] redundancy appears to lie at the heart of his problems. It seems, regrettably, to have generated a misplaced sense of unfairness at the loss of his job,” she said.
Next stop is the High Court
In the appeal hearing, Victorian Court of Appeal Justices Phillip Priest and David Beach found that Justice Zammit had “determined that [the worker’s] evidence was coloured by [his] lack of objectivity” and that she relied on his “unreasonable and relentless attempts to prove a conspiracy against him”.
“The judge’s patience and forbearance are evident,” they said.
The worker, who has not worked since he was retrenched from this position in 2009, was refused leave to appeal and ordered to pay the employer’s defence costs.
After the ruling was delivered, he told the judges “I’m taking it to the High Court”.
Learn more in the Health & Safety Handbook
It is best to resolve workplace issues before they reach court.
In the following Handbook chapters we show you how to address subjects raised in this article:
B1 Bullying
M3 Mental Health
P1 Performance Management
S4 Stress
Not already a subscriber?
Why not take our free, no-obligation trial today?
Find out more.
|
|---|
|
|---|
|
|---|
|
|---|
|
Your questions answered:
What is a lost time injury and how long does it last?
|
|
|
| Can you provide the definition of a lost time injury and how long it lasts for? |
|---|
|
|---|
|
|
|
A lost time injury is defined as an injury that results in a worker not being able to report to their next shift at work. This includes an injury that results in a fatality or permanent disability.
The definition and reporting requirements arise under the Australian Standard, Workplace Injury and Disease Recording Standard. This sets out the reporting requirements in respect of the time lost from work.
For the purposes of reporting a lost time injury, the duration of time lost from work is the total number of complete working days or shifts lost from work as a result of the injury.
Receive expert knowledge and support from top lawyers
For free from the Health & Safety Helpdesk, when you subscribe to the Health & Safety Handbook. |
|---|
|
|---|
|
|---|
|
|---|
|
|---|
|
|---|
|
|
“ Contractor fined $70,000 after
open stairwell fall ”
“ Victorian forklift tragedy earns freight company $375,000 fine ”
“ Construction company fined $100,000 after worker sustains minor injuries ”
Don’t let your business become the next headline.
Discover an easy way to keep your workplace safe and protect your business from
fines and prosecution
|
|---|
|
|
|---|
|
|---|
|
|---|
Like what you see? Try our other free bulletins
| |
|---|
|
|---|
|
|
Twice-weekly tips and useful advice to help ensure you're always up to date with workplace legislation. Click below for an immediate free subscription.
|
|---|
|
|---|
|
|
Practical advice that will help ensure you comply with all your CoR and road transport obligations. Click below for an immediate free subscription.
|
|---|
|
|---|
|
|---|
|
|---|
|
|---|
|
|
|---|
|
