Workplace Investigation Negligence Claims

Workplace Investigation Negligence Claims – Recently in a long and expensive trial the Victorian Supreme Court rejected $1.8 million negligence claim against a construction company, rejecting claims that the behaviours of a manager towards a subordinate amounted to workplace bullying. Hingst v Construction Engineering (Aust) Pty Ltd (No 3) [2018] VSC 136 (29 March 2018) Link to case

Justice Zammit rejected allegations made by retrenched contract administrator David Hingst from Melbourne firm Construction Engineering Australia that his supervisor repeatedly abused him, resulting in depression, anxiety and physical injuries equating to $1.8 million in damages.

Nothing in the judgement indicates that the employer conducted a workplace investigation into the claims of bullying made by Hingst.  Had a workplace investigation been conducted it may have saved a lot of time and expense and a trial. An investigation by the employer would have been able to produce evidence to refute the employee’s claims.

The most important part of any court proceeding such as a Supreme Court trial or Fair Work Commission hearing is evidence. Evidence can be expertly gathered during a workplace investigation or you can rely on your witnesses at the actual trial. (I know which i would prefer).

In this case Mr Hingst made a the series of bullying claims including the allegation that his supervisor Mr Short would regularly “pass wind’ on him or at him and that the behaviour progressed to the point where he would do it every day.

Mr Hingst said Mr Short’s behaviour was insulting and humiliating and that he had responded by buying a can of deodorant and spraying it over Mr Short.

During the 18-day trial involving sixteen witnesses, the claims made by Mr Hingst were denied by the employer and other employees including Mr Short. Justice Zammit noted,  “It is important that I state upfront that I found the plaintiff to be an unreliable and unsatisfactory witness.”

During the trial Justice Zammit commented, I agree with the defendant that the plaintiff treated this proceeding as if it were a ‘judicial commission of inquiry’ into the way the defendant company operated rather than a bullying claim at common law.

As the trial progressed the court noted that it became evident that the plaintiff was more focused on his grievance about the loss of his employment than any bullying that took place during his time at the defendant company. His sense of having been betrayed by the defendant, and his former colleagues, was palpable. The plaintiff referred several times to feeling ‘hurt’ at being made redundant

Justice Zammit concluded that no Construction Engineering Australia staff had bullied or harassed Mr Hingst and noted evidence that domestic stress and dismissal probably led to Mr Hingst’s psychiatric injuries.

“It is in a sense tragic that the plaintiff’s redundancy appears to lie at the heart of his problems.”

Workplace Investigation Negligence Claims – Lesson & advice for employers

1. Decisions in trials in court or hearings at the Fair Work Commission are made on the evidence placed before the judge or commissioner.
2. Evidence crucial to the outcome of the matter will be gathered during the course of a workplace investigation
3. Investigate claims of bullying and harassment thoroughly, it may save you a lot of time and money in the long run
4. If you are not sure what to do, call an expert, AWPTI can assist – Workplace Investigations

AWPTI – workplace investigation Sydney and through-out NSW, QLD and Victoria. Workplace training national wide
Misconduct investigations, bullying investigations, harassment investigations & sexual harassment investigations, complaint investigations, grievance investigations, discrimination investigations


0 replies

Leave a Reply

Want to join the discussion?
Feel free to contribute!

Leave a Reply

Your email address will not be published. Required fields are marked *