The Facts
Warehouse worker warned about slow work and failing to achieve set targets
A warehouse worker was employed by a haircare product seller and distributor, commencing in February 2014.
The company operated on a “just-in-time” inventory model, whereby its selling point was the promise of next-day delivery of its goods.
The warehouse workers were therefore expected to work rapidly to fill orders and meet the required turnaround time between the order being placed and the delivery of goods.
Unfortunately, this particular worker was very slow and was failing to reach the workplace targets expected of him.
He was aware that employees’ work performance was monitored, and that the work pace and output he was achieving was far lower than that of his colleagues.
The company held disciplinary meetings with the worker about his poor work performance.
Worker alleges bullying by supervisors and company conducts internal investigation
Although the worker subsequently claimed he had reported that he was being bullied to one of his supervisors, he did not complain specifically about the matters in question until July 2015.
In July 2015, during another disciplinary meeting with the president of the company and one of the worker’s supervisors, the worker reported that he felt he was being abused and bullied by his immediate supervisors.
The company commenced an internal investigation, including speaking separately to individual colleagues who the worker claimed had witnessed the bullying.
The worker claimed that the supervisor had sworn and yelled at him, called him racially abusive names and thrown bottles at him. An internal investigation found these claims to be unsubstantiated.
Although the results of the investigation were not recorded in writing, the worker was informed of the findings.
Similarly, the employer’s insurer prepared an investigation report, which also found no evidence that bullying had occurred.
Medical records show deterioration of worker’s psychological condition
The worker was under the care of medical professionals throughout the course of his employment at the warehouse.
Medical records showed multiple reports of stress from work by the worker, in addition to a knee injury sustained in the workplace.
The evidence from these records suggested a decline in the worker’s psychological state over time. While he spoke to his doctor of pressures at work and unrealistic expectations of him with regard to his work performance, he did not raise bullying or harassing behaviour with the doctor until the end of his employment.
Warehouse worker dismissed and launches workers compensation claim
Problems with the worker’s work performance continued. Despite repeated requests to improve and official warnings, he failed to increase the speed of his work to the standard required by the company.
The company dismissed the worker in October 2016.
The worker subsequently commenced negligence proceedings against the company under workers’ compensation legislation, seeking damages for a workplace injury.
The worker alleged the company had breached its duty of care and he had suffered a psychological injury, being major depression, because of his supervisor’s bullying and harassment.
Expert commentary on the court's decision
The NSW District Court finds in favour of employer
In Darma v Claremont Connections Pty Limited [2021] NSWDC 509, the District Court found in favour of the employer, Claremont Connections, with the worker, Mr Kosim Darma, failing to establish that the bullying and harassment had occurred.
The court had to decide whether Mr Darma had discharged his burden to prove, on the balance of probabilities, that he had been subjected to bullying and harassing behaviour.
There is no onus on the defendant (in this case, the employer) to prove anything in this regard – the burden lies entirely with the plaintiff (in this case, the employee).
Employer’s witnesses regarded as reliable and credible
The judge carefully weighed up the conflicting evidence of Mr Darma and the witnesses, who were Mr Darma’s colleagues and supervisors.
The employer had called Mr Darma’s main supervisor, Mr Kokou Kodakpau, as well as his manager, Mr Sunoj Sebastian, as witnesses. Both supervisors denied the allegations made by Mr Darma.
In considering the credibility and reliability of these witnesses, the judge formed the view that each was doing his best to answer the questions he was asked honestly.
In addition, written statements from other employees were provided. According to these statements, the other employees claimed not to have seen the bullying that Mr Darma had alleged.
The judge concluded: “I accept the plaintiff genuinely feels he was wronged at his work. I gained the impression he perceives he was treated very badly… However, his perception does not prove the fact.”
No direct corroborating evidence of bullying or harassment
After reviewing all the evidence and having seen the witnesses in the witness box, the court found that there was no evidence of bullying or harassment to corroborate Mr Darma’s claims. Neither had the employer breached its duty of care.
While the judge conceded there was a reasonable possibility the bullying behaviour may have occurred in the workplace without other supervisors seeing it, he thought it was less likely to have been able to occur without Mr Darma’s other colleagues witnessing it.
Investigations by the employer found no evidence of the bullying, and although Mr Darma had informed medical professionals he was the victim of bullying behaviour, the allegations similar to those put before the court were only recorded in his medical records after he was terminated from his job.
Mr Darma was ordered to pay the employer’s legal costs.
Importance of investigating employee complaints and taking accurate written statements
This case is a good reminder for employers to ensure that any bullying or harassment complaints from employees are taken seriously and investigated thoroughly and in a timely manner.
Potential witnesses should be interviewed, and all details of the investigation should be recorded in written supporting statements.
This will assist with any legal action taken against the company, should an employee or former employee make a claim for work injury damages.
If, on the other hand, you are an employee planning to make a complaint of bullying or harassment against your employer, you need to ensure you have evidence beyond your own testimony that the bullying has taken place.