Fiona Brown, a solicitor with Maurice Blackburn's Family Law
Department, last week lost an appeal to the Victorian Court of
Appeal, claiming that she had been bullied, harassed and undermined
by a female colleague when she returned to work following maternity
The claim brought to light an exchange of emails and comments
which showed that both women were under a great deal of pressure,
both with work and family responsibilities.
At the initial trial, the Judge concluded that Ms Brown had not
been bullied and that it was not reasonably foreseeable that she
might suffer psychiatric injury as a result of the situation. He
found that Ms Brown's complaints were not supported by the
evidence and did not in fact amount to systematic harassment as
The firm had not, therefore, breached its duty of care to Ms
The decision reiterates that the threshold test for the
imposition of a duty of care is the reasonable foreseeability of
psychiatric harm. In this case, such harm was not a reasonably
foreseeable consequence of the performance of her duties until she
raised the issue late in 2003, by which time Ms Brown had made up
her mind to leave.
It was only once the alarm was raised that it was important to
identify the reasonable person's response to foreseeability of
injury of the type which Ms Brown allegedly suffered. The facts in
this case showed that the firm's managing partner had properly
discharged his duties.
Employers should be vigilant to the possibility that seemingly
trivial intra-office exchanges may escalate into something more
serious, eventually triggering the duty of care to avoid the risk
of harm. Good practice based upon sound procedures, early
intervention and dispute resolution is probably the best
prescription to avoid costly and time-consuming court battles.
Long experience representing many of Australia's leading employers has taught us that in employment litigation the identity of an employee's representative is a major factor in how employee litigation runs.
Australian employees receive certain entitlements (such as annual leave and superannuation) where contractors do not.
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