Pick up the pace – poor performer fails to establish negligence

In brief 4 min read

The New South Wales District Court has rejected a worker's negligence claim, finding that his supervisor's repeated requests for him to hurry up did not amount to bullying or a breach of the employer's duty of care.¹

Key takeaways

• Employers are entitled to address performance concerns with staff, and this will not necessarily be bullying.
• Bullying allegations in the workplace should be appropriately tested by interviewing potential witnesses and checking for any corroborating evidence.

Background

Mr Darma was employed as a warehouse assistant by Keune Australia, a seller and distributor of haircare products. It promised next-day delivery of its goods, and workers such as Mr Darma were required to quickly fill the orders in order to meet this delivery promise. In October 2016, Keune dismissed him for failing to meet set targets and improve the speed at which he picked and packed orders, despite receiving numerous warnings.

Mr Darma commenced negligence proceedings against Keune under workers' compensation legislation. He alleged he suffered a psychological injury as a result of his supervisor's frequent bullying and harassing behaviour, which allegedly included yelling and throwing bottles at Mr Darma, and calling him 'slow'. The bullying allegations were investigated internally by Mr Darma's manager and found to be unsubstantiated. An investigation report was also prepared by the employer's insurer, again finding no evidence of bullying.

The decision

The key issue before the court was whether Mr Darma had established that the alleged bullying and harassing conduct occurred.

The court ultimately found in favour of Keune, for reasons including:

• there was no direct corroborating evidence of the bullying or harassing conduct, including when the allegations were investigated by the employer;
• while Mr Darma told medical professionals he had been subjected to bullying conduct, it was not until after his employment had been terminated that those allegations were recorded in medical records;
• Keune's witnesses were reliable and credible; and
• the evidence established that Mr Darma had difficulty in keeping up with the speed required for him to discharge his duties to the appropriate standard. However, there was no evidence to suggest that his supervisor engaged in the bullying conduct alleged (regardless of whether he had repeatedly told Mr Darma to hurry up and had become frustrated when doing so), or that the employer had breached its duty of care.