Which case won?

The case for the warehouse worker
  • Throughout the course of my employment, I was subjected to bullying, harassment and yelling. I had products thrown at me by my supervisors. This abuse occurred in front of my manager and colleagues.
  • In addition to being bullied myself, I also witnessed my main supervisor bullying other workers and supervisors.
  • I informed the company of the bullying on many occasions, including sending a text complaining about this behaviour.
  • The company’s owner and other supervisors failed to act when I made them aware of the bullying.
  • The bullying caused me major depression, a psychiatric and psychological injury, which was documented multiple times by my doctors.
The case for the employer
  • The worker was slow and inefficient at his work. 
  • We addressed our concerns with the worker about his performance and failure to meet the required targets, but never in an aggressive or harassing way.
  • There was no bullying or harassment of this worker, nor of any other worker in our company.
  • We did not receive a text from the worker about the bullying, which he claimed to have sent, nor did we witness any bullying ourselves.
  • When the worker finally did inform of us of the bullying behaviour in a disciplinary meeting with him in July 2015, we investigated his claims.
  • Our internal investigations found no evidence of bullying. None of the people that the worker alleged had witnessed the bullying against him - as well as also being subjected to such harassment themselves, according to the worker – claimed to be aware of any such behaviour.
  • While we do not deny the worker was under stress and did have a psychological injury, we dispute that this was caused by bullying or harassment in the workplace.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
case a27%
case b73%

Expert commentary on the court's decision

Jodie Thurgood
Jodie ThurgoodAssociate Director
“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.”
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. 

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information. Information related to coronavirus can be outdated very quickly.

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